THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION ONE DIANE HAMPTON, | Court of Appeal No. B276181 Plaintiff/Appellant, v. | (Superior Ct. No. BC566103) LOS ANGELES UNIFIED SCHOOL County DISTRICT; and, DOES 1 thru 100, inclusive, Hon, Richard E. Rico, Judge eel Appeal from the Superior Court APPELLANT DIANE HAMPTON'S OPENING BRIEF LAW OFFICES OF: LEVI REUBEN UKU, ESQ. SB#196406 1055 W. 7" Street Suite 3300 LOS ANGELES, CA 90017 Telephone: (213) 385-0193 Facsimile: (213) 385-0576 Attomeys for Appellant DIANE HAMPTONTABLE OF CONTENTS Page TABLE OF AUTHORITIES ii STATEMENT OF THE CASE 1 STATEMENT OF APPEALABILITY 1 STATEMENT OF FACTS 1 ARGUMENT ie A 3 B. 3 c: 3 CONCLUSION 4 CERTIFICATE OF COMPLIANCE 5 ‘TABLE OF AUTHORITIES CASES Page Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 United States v. Mateo-Mendez (2000) 215 F.3d 1039, 1042 (9th Cir.) United States v. Owens (1986) 789 F.2d 750, 753 (9th Cir.) Guz v. Bechtel Nat,, Inc. (2000) 24 Cal.4th 317, 334 Daly v. Yessne (2005) 131 Cal-App.4th 52, 58.)Santillan v. Roman Catholic Bishops (2008) 163 Cal.App.4th 4, 8) Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768... United States v. Mateo-Mendez (2000) 215 F.3d 1039, 1042 (9th Cir.) United States v. Owens (1986) 789 F.2d 750, 753 (9th Cir.) Grant v Adams (1977) 69 Cal.App 3d 128, 130 Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121,129 Fisher v. San Pedro Peninsula Hospital (1984) 214 Cal. 11App. 3d 590, 610 Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4th 297, 310 Hersant v. Department of Social Services (1997) 57 Cal. App.4th 997, 1002 [67 Cal.Rptr.2d 483] Sandell v. Taylor-Listug, Ine. (2010) 188 Cal. App. 4th 297, 310 MeDonnell Douglas Corp. v. Green (1973) 411 USS. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817] Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 1317 [237 Cal.Rptr. 884] Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal. App. 4th 1367, 1377 Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 Etter v. Veritlo Corp. (1998) 67 Cal.App.4th 457, 464.467 Dee v Vintage Petroleum, Inc. (2003) 106 Cal. App 4" 30, 36-37Rodgers v. Western-Southern Life Insurance Co. (7th Cir.1993) 12 F.3d 668, 674 Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601, 50 Cal.Rptr.2d 431 Aragon v. Republic Silver State Disposal, Inc., (9th Cir. 2002) 292 F.3d 654, 659 Wallis v. LR. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)) Chuang v. Univ. of Cal. Davis, (9th Cir. 2000) 225 F.3d 1115, 1124 Rogers v. EEOC, 454 F. 2d 234, 238 (CAS 1971) 406 U.S. 957 (1972) Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133 Meritor Savings Bank, FSB v. Vinson (1986) 477 U.S. 57 es. Ine. (2009) 178 Cal. App. 4th 243, 270 National Railroad Passenger Corp. v. Morgan (2002) 536 U.S. 101, 117 ‘Yanowitz v. L'Oreal USA, Ine, (2005) 36 Cal. 4th 1028, 1056, State Dept. Of Health Services v. Sup. Ct. (McGuinness) (2003) 31 Cal.4th 1026, 1042 (Jenkins v. Orkin Exterminating Co., Inc., supra, 646 F. Supp. at pp. 1278-1279.) STATUTES Code Civ. Proc., § 437, subd. (c). Gov. C. § 12920 Gov. C. §12940(a) Evid. Code, § 602 Gov. C. § 12940 @) (1)(Stats. 1984, ch. 1754, § 1, p. 60.)INTRODUCTION ‘The question raised in this appeal is whether an employer having created a hostile work environment in violation of the Fair Employment and Housing Act ("FEHA"), can legitimately rely on same to dismiss an employee. Plaintiff Appellant Dianne Hampton ("Hampton") commenced this suit at the Superior Court of California, County of Los Angeles, to challenge the dismissal from her employment as a grade school teacher with Defendant/Respondent, Los Angeles Unified School District ("LAUSD") on the ground that such dismissal violated the Fair Employment and Housing Act prohil also alleged constructive discharge. Ina motion for summary judgment, the subject matter of this appeal, LAUSD denies the allegations in the complaint and states the Hampton was dismissed for cause. Hampton opposed n against discrimination on the basis of race and national origin, and retaliation. She the motion and filed papers in opposition, including evidentiary objections. In the opposition papers, she provides evidence of discrimination and contends that the supposed legitimate cause stated by LAUSD was pretextual and does not eliminate possibility of a finding of discrimination and retaliation, As a result, she argues, triable issues exist, which should be resolved in a complete trial on the merits. The trial court granted the summary judgment without making any findings of fact, or providing basis or explanation for its reasoning or ruling on the evidentiary objections, The lower court also declined to consider whether genuine disputes of material facts exist regarding LAUSD’s conduct identified in the motion opposition papers. Following the entry of a final Judgment in favor of LAUSD, Hampton filed a timely notice of appeal ‘The grant of judgment for LAUSD impliedly relied on the pretextual legitimate reasons advanced by LAUSD, which were carefully designed to frustrate Hampton in her employment and engineer her dismissal from work. The judgment misreads the statutes and misapplies the doctrines. The decision if left to stand will provide California employers with a pretext to carefully railroad employees into discriminatorily hostile environment and escape liability for their conduct, ‘The lower court's decision mirrors an ideal working condition and ignores the fact that egregious working conditions can so affect an employee that all sense of logical operation couldbe lost. Additionally, the judgment relied on privileged, therefore, inadmissible physician- patient communication, together with hearsay evidence, ISSUES PRESENTED FOR REVIEW 1, Whether Ms. Hampton has a claim for Discrimination Based on Race and National Origin under the FEHA against LAUSD 2, Whether Ms, Hampton has a claim for Retaliation under the FEHA against LAUSD. 3. Whether substantial and overwhelming evidence exist to justify the finding that Hampton cannot establish prima facie discrimination 4. Whether in the face of overwhelming evidence the trial court is right to hold that Hampton did not demonstrate a discriminatory motive for her termination, STATEMENT OF THE CASEL FACTUAL BACKGROUND Hampton is a qualified and credentialed teacher of African-American descent. She was employed by LAUSD from 1998 to 2014. See, Declaration of Diane Hampton ("Hampton Decl.")§ 2.{ Cletk’s Transcripts Hereinafter “CT” p 76: 5-14]. Prior to being employed by LAUSD, Hampton worked as a teacher with Compton Unified School District from 1991 to 1998 without adverse incidents and was commended by her employer, the parents, and the students. In the course of the employment with LAUSD, Hampton taught grade classes at ‘numerous of its schools and worked closely with some of the principals and other staff, and was given responsibilities out of the classroom. ‘Hampton was first employed at Manchester Elementary School and taught there from September 1998 to September 2005. Between July 2005 and July 2007, she was assigned to 95th Street Elementary. When Hampton left Manchester Elementary School, eight children transferred to 95th Elementary mainly because she was teaching there. Hampton next taught at La Salle Elementary - from July 2007 to October 2008. From La Salle, Hampton was assigned to Ambler Elementary from the end of October 2008 to March 2009. She held other teaching positions at Barton Hill Elementary (September 2009 to June 2010); Raymond Avenue Elementary (September 2010 to March 2011); and John Muir Middle School from March 2011 to June 2011. At John Muir, Hampton taught 6th Grade and received excellent evaluations from school administrators. Hampton Decl. § 46. [CT p 76:11-16; 83:8-28; p 84: 1-14] Hampton was hired at 107" Street Elementary School in September 2011 and taught there till September 2012. She was dismissed while she was working at 107th Elementary School. Hampton's relationship with LAUSD and some of the schools was not all rosy. In 2007 while at 95th Strect Elementary, Hampton's car tires were slashed by Ms. Christine Mendoza. Hampton Decl. 7. [CT p 76: 17-29] Hampton reported the incident to the Principal and Assistant Principal and requested for photo footage of the surveillance camera but she was denied same and the officials informed her that there was nothing they could do about the incident. When she insisted on following through with the complaint, they suggested that she was not a team player. Hampton Decl. § § 60. [CT p 85: 2-28; 86: 2-27] Hampton next reported the incident to LAUSD Superintendent Admiral Brewer via the District's intemal email. Hampton Decl. % 7, 63. LAUSD failed to investigate the matter or take any actions thereon.Instead, as a result of Hampton's said complaint, LAUSD began to target her for systematic retaliatory actions like transferring her to the worst performing schools in the toughest neighborhoods, treating her as paranoid, and generally discriminating against her. Hampton Decl. §8. [CT 76: 22-28] Referrals for Fitness for Duty Evaluations {ronically, Hampton's first direct encounter with racist encounter at LAUSD occurred at LaSalle on October 8, 2007, when Ms. Thomas, a substitute principal, who is also of A frican- American descent, in concert with Hecto Dubon, local District Area Director for LAUSD Physically pulled Hampton out of her classroom in the full view of her students and dragged her before the District's physician Rosa Mercado, M.D., for drug and alcohol tests alleging concern that she appeared drunk or under the influence of drugs. Hampion Decl. 4943, 44. [CT p 83: 20- 28 The test results were negative for substances tested but according to Hampton, the experience humiliated and shamed before her students, as according to her, the deed was done, she was ‘Inumiliated and defeated. Hampton Decl. 455. {CT p 85: 13-28] Thereafter, for the duration of Hampton’s employment with LAUSD, Dr. Mercado Continued to haunt her with persistent referrals for fitness for duty examinations. On October 12, 2007, a few days after the October 8, 2007 i another fitness examination at the Employee Health Services. On October, 13, 2007 she was referred for psychological evaluation with Brian Jacks, M.D., a psychologist and attended clinic with Dr. Jacks on October 15, 2007. That was a total of four medical interventions in eight days, On November 13, 2008, Hampton was again evaluated by Dr. Mercado. [UF 28, 29, 30, 31, 34, 35 and 36]. See also, Memorandum of Points and Authorities in Support of Defendant's Motion itial medical evaluation, Hampton was subjected to for Summary Judgment, or, in the Alternative, Summary Adjudication: pages 4 t0 5, line: 6.] Finally in March 2009, Dr. Mercado recommended that Hampton was not fit to serve with LAUSD. [UF 40.] This in effect recommended for her dismissal from employment. Hampton's Racist Encounter at 107" Street Elementary School In the course of her teaching assignment at 107th Elementary School, Hampton suffered repeated harassment, intimidation, and other forms of racial discrimination from Principal Rios and LAUSD staff. 4. Use of Racial Slur on HamptonPrincipal Rios and Roxanne Miranda LAUSD Access-to-Core Coach repeatedly called Hampton a “nigger Bitch” or “Nigger.” (DF 19). [CT p 15:1-23; p 85: 3-28]Specifically in April 2012, Hampton retumed to school after serving suspension imposed on her by Principal Rios, upon seeing Hampton, Miranda inquired of Principal Rios “why is that black bitch back in here?”, to which the latter responded, “don’t worry I will get her. Hampton Decl. 14. [CT p77:17-28}. On another occasion, Principal Rios had a testy conversation with Miranda and Plascencia where Rios pleaded with them to be patient that he had the “Bitch”, meaning Hampton, where he wanted her to be. Hampton Decl. § 20.[CT p 79:1-28] 4. Falsified Work Evaluation Principal Rios falsified Hampton's work evaluations and wrote false accusatory reports against her; had students with disciplinary problems sign complaints that he “doctored and authored” in connivance with Miranda and Dr. Plascencia, which complaints contained numerous false allegations accusing Hampton of conduct violative of LAUSD's policies. See Hampton Decl. $¥47,48,49,50,51,52-57, 58-63. [CT p 84: 10-28; p 85:1-28; p 86:1-28] & Twisted Reports of Students" Illegal Activities Hampton received reports that some male students were simulating or engaging in sexual acts in the bathroom, she reported the incident to Principal Rios. Rios invited the students to his office on two occasions, and after these interactions, Rios produced a written note accusing Hampton of calling the students gay. Hampton Decl. § 12. [CT p 85: 13-28]On another occasion, when Hampton received reports that some other students were engaged in same sex conduct, she informed Principal Rios. Rather than addressing the issue, he blamed the situation on her. Hampton Decl. § 54.Hampton was forced to report the incident to Dr. Rosalinda, LAUSD. Director but Dr. Rosalinda admonished Hampton to “start thinking about leaving her job”. Hampton Decl. 4§ 25 [CT p 79:24-28; p 80:1-3] d. Got Students to Falsify Reports Against Hampton On September 5, 2012, some students were disruptive of the classroom. Hampton got a fellow teacher to inform Principal Rios, and sent a note to his office through one of the class students. It took him over an hour to respond to the call. When he eventually did, he went over to her class with Miranda in tow. They interviewed the students without Hampton being present and produced a report blaming Hampton for the incident. Hampton Decl. §§ 15, 16. [CT p 77:23- 28; p 78: 1-11]One of the students involved in the September 5 disruption was Khadija, who sometime in late spring, while she was in another class hit Hampton on the playground. Hampton reported the earlier incident to Rios, and other students confirmed that Khadija hit Hampton. But Rios ‘would have none of it and accused Hampton of procuring the students to lie in her favor. A few days later he produced a report whereby the students had changed their account of the incident, and blamed it on Hampton instead. Common sense should have dictated that Khadija be separated from Hampton's class but Rios made sure that reverse was the case. Hampton Decl. 4 18. [CT p 78: 15-20] ‘On another occasion, a student Princess slammed the classroom door on Hampton's hand which caused swelling and blister. Upon being informed, Rios tured the incident into a narrative that Hampton yelled at him that the student should be arrested. Hampton Decl. 4 30. [CT p 80: 26-28: p 81: 1-4] & Denial of Administrative and Material Principal Rios denied Hampton administrative and material resources needed to succeed at 107" Street Elementary School. He failed to assign any teachers” assistance to Hampton and for weeks preceding February 7, 2012, did not assign a janitor to her classroom, and changed the locks to the classroom, which forced Hampton to personally stay behind each day to sweep the classroom. Yet, LAUSD blames her for not maintaining a clean environment in her classroom. (DF #23.) [CT p 14: 14-28; p 15: 1-22]. tf Report to LAUSD Authorities Not Heeded Hampton reported to Dr. Rosalinda the District Director about the sexual incidents by some specific students as was reported to her by the students who were percipient witnesses of the incident. [Hampton Depo. 179:6-25; 180:1-25], instead of Dr. Rosalinda proffering solutions to Hampton's complaint, Dr. Rosalinda told the her to “stop complaining,” and “you need to think about leaving your position”. [Hampton Depo. 181:1-25: 182; 182:1-25; 183:1-25]. Hampton also reported to LAUSD officials like Superintendent McKenna and Director Rosalinda that she felt racially targeted and discriminated against by Rios. Again, no action was taken. [CT p 79:24-28] Il PROCEDURAL HISTORY Hampton commenced her action against LAUSD on December 9, 2014, seeking damages for race and national origin discrimination, retaliation, and constructive discharge. On January22, 2015, LAUSD brought a general demurrer on the grounds that LAUSD eannot be legally liable for constructive termination of the Plaintiff. Hampton filed her opposition to the demurrer ‘on March 27, 2015, and the court heard arguments and issued a tentative ruling on the demurrer on April 8, 2015, and the notice of ruling on April 9, 2015. In the ruling, the court dismissed the cause of action for Constructive Discharge, and LAUSD filed its Answer to the Complaint on April 10, 2015. Thereafter, the parties undertook discovery, including depo ions. On March 10, 2016, LAUSD moved for Summary Judgment asserting, despite substantial and overwhelming evidence to the contrary, that Hampton cannot establish prima facie discrimination, or demonstrate a discriminatory motive for her termination; and that she cannot establish that she was engaged in protected activity or show any retaliatory pretext. The motion also argues that Hampton was dismissed for cause and was disciplined based on concerns raised by parents, students, staff, and Principal Rios! own observation of her teaching. The motion also argues that her claim for retaliation fails as she did not suffer any adverse employment action or complain of being discriminated against on the basis of her race or national origin, and that any actions by LAUSD were legitimate and non-retaliatory as neither principal Rios nor anyone ever made any derogatory comments to Hampton regarding her race or national origin or discriminate or retaliate against her due to her race or national origin. Hampton filed her opposition to the motion on May 9, 2016, together with evidentiary objections to the supporting declarations to LAUSD motion for summary judgment. In the opposition, Hampton demonstrated that LAUSD created a discriminatorily hostile work environment that targeted her on account of her race and national origin and retaliated against her for complaining about the discrimination. On May 20, 2015, LAUSD filed its reply to the opposition. ‘The trial court heard arguments, and issued its tentative ruling on June 2, 2016, followed by final judgment delivered on June 28, 2016. In the judgment, the court upheld the motion for summary judgment. In reaching the verdict, the trial court inappropriately rejected HAMPTON’s idence, The judgment did not make any findings of fact, or provide any basis or explanation for its evidentiary objections by failing to rule on same, and relied on inadmissible hearsay reasoning. II STANDARD OF REVIEWSummary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437e, subd. (c).) On appeal from a grant of summary judgment, the court "review{s] the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th 317, 334; Daly v. Yessne (2005) 131 Cal.App.4th 52, 58.) The application of this standard means that the court "must assume the role of the trial court and redetermine the merits of the motion.” (Santillan v. Roman Catholic Bishops (2008) 163 Cal.App.4th 4, 8),) The court must view all submitted evidence in the light most favorable to the opposing party, liberally construing his evidentiary submission while strictly scrutinizing the movant’s own showing, and resolving any evidentiary doubts or ambiguities in the opposing party’s favor. (Saelzler v_ Advanced Group 400 (2001) 25 Cal.4th 763, 768. Regarding evidentiary objections, “the selection of the applicable standard of review is contextual.” United States v. Mateo-Mendez, 213 F.3d 1039, 1042 (9th Cir, 2000) (citing United States v. Owens, 789 F.2d 750, 753 (9th Cir. 1986)). ‘The district court's construction of the Federal Rules of Evidence is a question of law subject to de novo review. Questions of admissibility of evidence which involve factual determinations, rather than questions of law, are reviewed for abuse of discretion. When a mixed question of law and fact is presented, the standard of review tums on whether factual matters or legal matters predominate. If an “essentially factual” inquiry is present, or if the exercise of the district court's discretion is determinative, then we give deference to the decision of the district court; otherwise, we conduct a de novo review. Id. (citations omitted). wv ARGUMENT In reviewing cases involving the discharge of public employees, an appellate court must contend with two conflicting theories. The emphasis on one is to protect the employee from any attempt to curtail his exercise or deprive him of constitutionally protected rights, including any property right in his position. The other is to give governmental agencies the flexibility in personnel matters and policies that will enable them to encourage competency and efficiency in public employment. Grant v Adams (1977) 69 Cal.App 3d 128, 130. A court faced with deciding between the conflicting theories should be more inclined to gowith the public policy of the State of California, which protects and safeguards the right and opportunity of all persons to hold employment without discrimination.! FEHA protects and safeguards an employee's right to hold employment without fear of discrimination and/or retaliation. The law provides that it is unlawful employment practice for an employer “to discharge [a] person from employment or to discriminate against [that] person in compensation or in terms, conditions, or privileges of employmient” based on that person’s race or national origin. (Gov. C. §12940(a).)? Pursuant to § 12940, subdivision (h) (1), it is unlawful: “ For an employer . .. or any other person, because of race . .. [or] national origin . . . to harass an employee or applicant.” One form of employment discrimination is harassment on the basis of race or national origin. Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121,129. California Code of Regulations, Title 2, § 7287.6, subdivision (b)(1)(A), defines harassment to include “[vJerbal harassment, e.g., epithets, derogatory comments or slurs on a basis enumerated in the Act[.]”Moreover, "the pervasive use of derogatory and insulting terms ... may be properly considered to constitute ... harassment. (Citations.)" Accardi v. Superior Court, (1993) 17 Cal.App.4th 341, 348-349, " iris hereby declared as the public policy ofthis state that itis necessary’ to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disblity, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation, Itis recognized thatthe practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public ia general Further, the practice of discrimination because of race, coor, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial statu, source oF income, disability, or genetic ‘information in housing accommodations is declared tobe against public poliey. It isthe purpose of this par to provide effective remedies that wil eliminate these discriminatory practices. This part shall be deemed an exercise of the police power ofthe state for the protection of the welfare, health, and peace of the people ofthis state. (Gov. C. § 12920.) 2 The legislative note to Government Code section 12940 states, "The Legislature finds and declares that it isthe existing policy ofthe State of California to prohibit harassment and discrimination in employment onthe basis of any protected classification. Such conduct whether intentional or usintentional isa violation ofthe civil tights of California citizenry and has been shown to decrease productivity inthe workforce. It isthe existing policy of the State of California, as declared by the Legislature, that procedures be established by which alepations of prohibited harassment and discrimination may be filed, timely and efficiently investigated, and fairly adjudicated, an that agencies and employers be required to establish affirmative programs which include prompt and remedial intemal procedures and ‘monitoring so that worksites will be maintained free from prohibited harassment and discrimination by their agents, administrators, and supervisors as well as by their nonsupervisors and clientele, To further this intent, the Legislature enacts this act.” (Stats, 1984, ch, 1754, § 1, . 60.)To establish a prima facie case of unlawful harassment, a plaintiff must show that: (1) he belongs to a protected group; (2) he was subjected to unwelcome acts or words based on a protected status; (3) workplace was permeated with discriminatory intimidation, ridicule and insult that is so perverse or severe that it altered the conditions of employment and created an abusive or hostile working environment; and (4) respondeat superior. Fisher v, San Pedro Peninsula Hospital (1984) 214 Cal. 11 App.3d 590, 610. Prima Facie Case “While the elements of a plaintiff's prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination. Once this much has been established, the burden of proof shifts to the employer to provide a legitimate non-discriminatory reason for” the adverse employment action. (Sandell v. Taylor-Listug, Inc. 188 Cal. App. 4th 297, 310 (2010) quoting Hersant v. Department of Social Services (1997) 57 Cal. App.4th 997, 1002 [67 Cal.Rptr.2d 483] on the nature of prima facie case in context of age discrimination.) A Hampton Is A Member Of A Protected Class FEHA prohibits an employer from harassing an employee because of the employee's race or ancestry. Gov. C. § 12940 Gj) (1). Often it is not necessary to prove that one indisputably belongs to a protected class, but merely that one is perceived as (and discriminated against. because of) belonging to that class. I other words, so long as the injury suffered is due to being perceived as holding the status that was the basis of employer discrimination, the employee is protected by the FEHA. Hersant v. Department of Social Services (1997) 57 Cal.App.Ath 997, 1002 [67 Cal-Rptr.2d 483] (on the nature of prima facie case in context of age discrimination.) Hampton as an African-American belongs to a FEHA protected class; therefore, she meets the first prong of the prima facie test. B. Hampton Was Subjected To Unwelcome Acts Or Words Based On A Protected Status In discrimination cases, there will seldom be ‘eyewitness’ testimony as to the employer's, ‘mental processes.”In most cases, the complainant will be unable to produce direct evidence of the employer's intent, Consequently certain rules regarding the allocation of burdens and order of presentation of proof have developed in order to achieve a fair determination of the elusivefactual question of intentional discrimination.’ (Citation. ~ Sandell supra 188 Cal. App. 4th at 310, California has adopted the three-stage burden-shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 8. C. 1817]. (Guz, supra, 24 Cal.4th at pp. 354-356.) "This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the ation to be inferred from facts that create a reasonable likelihood of bias and test allows diseri are not satisfactorily explained." (Guz, supra, 24 Cal.4th at p. 354; see also Mixon v. Fair Employment & Housing Com, (1987) 192 Ca.App.3d 1306, 1317 [237 Cal.Rptr.884]] Here however, Hampton is able to show by direct evidence that the discriminatory words or conduct complained of have reference to her protected status. When Miranda asked of Principal Rios: "why is that black Bitch back here?", and he responded: "don't worry, I will get her", this exchange shows outright intent to deprive Hampton of her constitutionally protected property right based on her race. Again, when after a classroom disturbance, Principal Rios assured Miranda and Plascencia, that he had gotten the "Bitch", meaning, Hampton, where he wanted her to be, circumstantial evidence is not required to show that the discrimination is based on Hampton's race. The second leg of the prima facie test is satisfied. LAUSD Workplace Was Permeated With Discriminatory Intimidation, Ridicule And Insult That Is So Perverse or Severe That It Altered the Conditions of Employment and Created an Abusive or Hostile Working Environment In her opposition papers, Hampton presented evidence that LAUSD subjected her to a workplace so heavily polluted with discrimination as to completely destroy her emotional and psychological stability. Hampton presented the following evidence of hostile work environment: a. Use of Racial Slur, Epithet and Conduct Against Hampton ‘Miranda's outright aggressiveness to Hampton’s return to work when she asked Principal Rios: “why is that black Bitch back in here?”, to which he responded “don’t worry I will get her". The import of those words went beyond the verbal utterances and struck at the core of her employer-employee relationship with LAUSD. This should be situated in the context of someone who had devoted more than twenty years of her life to teaching.Principal Rios on another occasion on September 5, 2012, assured Miranda and Plascencia that he had gotten the "Bitch", meaning Hampton, where he wanted her to be. Hampton described how she was mocked by LAUSD’s employees and agents Dr. Deasy, Dr. McKenna, Mr. Narimatsu, Dr. Rosalinda, Principal Rios, Plascencia and Miranda, who picked on and made fun of the outward physical appearance and the symptoms of her stress by always accusing her of being “disheveled” and “disorganized” whereas the truth was that it was the employees and supervisors who inflicted mental distress on her. Hampton Decl. 436. (CT p 82:2-6]. b. Pretextual Fitness for Duty Evaluations Analysis of the referrals for fitness for duty evaluation shows that there is more to it than the need to determine Hampton's fitness for duty. At the first referral, Hampton notified Dr. Mercado that Hampton suffered from food poisoning, but the latter ignored the "patient's" presentation and compelled her to go through drug and alcohol te: conducted to determine if Hampton indeed suffered from food poisoning or if the symptoms she Ironically, no test was exhibited were consistent therewith. Here is Hampton's reaction when the results for both substances came back negative: . Despite Dr. Mercado’s and other LAUSD’s administrators of conspiring among themselves and pulling me out of my class on October 8, 2007 at La Salle Elementary School on the pretext that I appeared drunk and under the influence of drugs; an act that humiliated and shamed me before my students, the forced alcohol and drug tests came back negative, but the deed was done. Iwas humiliated and defeated. The truth was that I had food poison and dealing with it, contrary to Dr. Mercado’s report. I informed Dr. Mercado that I was sick. (Hampton Decl. 455.) [Emphasis added] See also, Hampton Decl. §44. [CT p 83:16-28] Having failed in the design to label Hampton a drug addict and alcoholic, with intent to soiling her employment record and carrying out the nefarious activities of laying the foundation for her dismissal, Dr. Mereado recourse to unleashing pejorative invectives on Hampton, and resorted to non-medical profiling and behavioral indicators, like pressured or slurred speech, stained and disheveled dress, and other subjective terms to describe Hampton and justify the conclusion that she was erratic. This "medical reporting" was nothing but an attempt to leave a ‘paper trail on which the pretextual scheme against Hampton would be coneretized. Hampton testified to a simple and logical reason for her physical appearance and pressured speech that so much caught the fancy of Dr. Mercado and other LAUSD’s employees and agents - that it wasdue to the pressure of the unrelenting and consistent personal attacks and denigration by Dr. Mercado in the pretextual, medical examinations by a person she knew was unsympathetic and vicious against her and her reputation. [DF 28.] [CT p 17: 1-5]. The pretend nature of the referrals for fitness examinations was laid bare in the fact that from March 4, 2009 when Dr. Mercado recommended that Hampton was not fit for duty to 2013, when Hampton was dismissed, LAUSD continued to entrust children to her care, and she taught at the following schools: Barton Hill: Raymond Avenue Elementary School; John Muir Middle School; and 107th Elementary School. At 107th, she even taught younger children in the 2nd Grade. Given her so called erratic behavior, it begs to question whether LAUSD would have continued to entrust these students into her care. ¢. Failure to Provide Support and Assistance Principal Rios set up Hampton for failure when he failed to assign teacher’s assistance or a janitor to her classroom, and changed the locks thereto. As Hampton did not have a janitor, she was forced to personally stay behind each day to sweep the classroom. The orchestrated students’ sabotage of Hampton and refusal and/or failure to investigate or properly investigate students! issues brought to him by HAMPTON also fall into that perspective. d. Demotion from Teaching 5th Grade Hampton felt a loss of opportunity to advance in her career when she was demoted from teaching Sth Grade to 2nd Grade at 107th Elementary, considering that at John Muir Middle School, the place of her last assignment, she taught 6th Grade. ¢. Slashed Car Tires In 2007, Hampton's car tires were slashed by Christine Mendoza at 95th Street Prep. Hampton reported the incident to the Principal and the Assistant, both of whom informed Hampton that there was nothing they could do about it. She reported to LAUSD Superintendent, Admiral Brewer. [CT p 76:17-28] Relying on the principles enunciated in Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464-467, LAUSD argues that the acts or conduct alleged by Hampton do not rise to the level of racial harassment needed to found a case of racial discrimination. This interpretation of that decision is wrong as “there is neither a threshold ‘magic number" of harassing incidents that gives rise to liability nor a number of incidents below which a plaintiff fails as a matter of law tostate a claim.” A single cthnic slur combined with other evidence established a triable issue of fact on the issue of a hostile work environment, Dee v Vintage Petroleum, Inc, (2003) 106 Cal. App 4 30, 36-37, citing Rodgers v. Westem-Southern Life Insurance Co. (7th Cir.1993) 12 F.3d 668, 674. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601, 50 Cal.Rptr.2d 431. ‘Additionally, Etter is distinguishable from the present case in a material particular, There, the relevant issue on appeal, and in the context of a full jury trial was as follows: "Question No. 1: Did Plaintiff Robert Etter prove by a preponderance of the evidence that (1) he was subjected 10 intentional and unwelcome conduct of a racial nature by Anita Grigsby?" In other words, the standard required was by a preponderance of the evidence. But, “[tJhe requisite degree of proof necessary to establish a prima facie case on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Aragon v, Republic Silver State Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d ‘885, 889 (9th Cir. 1994)) (emphasis in original); see also Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000) (an employment discrimination plaintiff need produce very little evidence in order to overcome employer's motion for summary judgment). LAUSD farther contends on the authority of Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993), that Hampton cannot present substantial evidence that her work performance and psychological well-being were seriously affected by the alleged discrimination or that she subjectively "perceived the environment to be abusive due to the alleged discriminatory comment. Here, LAUSD gravely misconstrues the applicable standard. A plaintiff does not have to present substantial, ot any evidence that her work performance and psychological well-being were seriously affected by the harassing conduct. That position is a reversion to the Meritor3 standard that requires tangible or concrete psychological harm or that plaintiff suffers a nervous breakdown in order to establish hostile or discriminatory work environment. The Supreme Court clearly disavowed such high standard when it held in Harri focus the factfinder's attention on conerete psychological harm, an element Title VII does not : "Such an inquiry may needlessly require. Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological well being, but the statute is not limited to such conduct, So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive ... there is no 3 Meritor Savings Bank, FSB v. Vinson, 477 US. 57 (1986)need for it also to be psychologically injurious." For the avoidance of doubt, that Court set the standard as follows. 510 U.S. 22 But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees! psychological well being, can and often will detract from employees! job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments " “so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers, " merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable. (Citation omitted), [Emphasis added.] Same standard is applicable in FEHA discrimination cases. Hampton has met this standard. Furthermore, LAUSD seems to wallow in the mindset that Hampton's complaint is all about abusive or harassing words or comments. (UF 80-82.) Apart from discriminatorily abusive words or comments, Hampton argues that she was subjected to harassing conduct. She also alleges that LAUSD failed to investigate the slashing of her car tires; subjected her to incessant and unwarranted fitness for duty evaluations; failed to provide material or administrative support; procured students to lie against her; and that Principal Rios and others conspired to write up her performance evaluation, All of these go beyond mere racial remarks or epithet. Totality of the Circumstances California Courts look to the totality of the circumstances. “Whether the [sexual] conduct complained is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. The Plaintiff must prove defendant’s conduct ‘would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended." Fisher, supra, 214 Cal.App.3d at 609-610. The “totality of the circumstances" test is ordinarily not decided on summary adjudication because the inquiry presented by the third "prong" of the Fisher analysis concerns whether the harassing conduct (a) "offended" her, (b) would have interfered with a reasonable employee's "work performance" and "psychological well-being," and (c) were therefore "sufficiently pervasive" to create a hostile or offensiveworking environment. Accordingly, the present inquiry more closely resembles “issue determination” prohibited by the Gray v. Reeves, supra, line of cases rather than permissible "issue finding." Nevertheless, “The factors that can be considered in evaluating the totality of the circumstances are: (a) the nature of the unwelcome . . . acts or works . . ; (b) the frequency of the offensive encounters; (c) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the . . . harassing conduct occurred." Fisher, supra, at 609-610. (a) The nature of the unwelcome acts consisted primarily of inappropriate, insensitive, and/or otherwise offensive speech concerning Plaintiff's race and ancestry. Continuing Violation Doctrine Hampton’s harassment claim is not time-barred because some of the harassing conduct against her occurred more than one year before the May 27, 2015 filings of governmental claim and yet, “hostile environment harassment ... by its nature involves an ongoing course of conduct rather than a single discrete act’ (Citations.)" Nazir v. United Airlines. Inc. (2009) 178 Cal. App. 4th 243, 270. As long as the series of events show a continuing pattem, the continuum of events isa SINGLE ACT of harassment. Therefore, itis irrelevant if many of the acts fall outside the limitations period as long as at least one act in the continuum occurs in the limitation period. National Railroad Passenger Corp. v, Morgan (2002) 536 U.S. 101, 117. ‘There is substantial and/or offensive speech concerning Hampton's race and/or ancestry, many of which occurred after January 2007, such as the slashing of Hampton's car tires at 95th Street elementary which occurred in 2007; when Hampton's tires were slashed at Ambler Elementary, the car slashing was committed due to Hampton's race. Hampton caught Mendoza slashing Hampton's car tires at Ambler and reported the incident to both the school Principal and her Assistant, both said that there was nothing they could do about it, The doctrine applies to racial harassment and discrimination claims."[W]hen an employer engages in a continuing course of unlawful conduct under the FEHA ... the statute of limitations begins to run ... when the employee is on notice that further efforts to end the unlawful conduct will be in vain, (Citations.)" Nazir, supra, 178 Cal. App. 4th at 270. Further, "the statute of limitations begins to run either when the course of conduct is brought to an end, as_by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.' (Citation.)" Yanowitz, v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1056.A triable issue therefore exists as to the date on which Hampton was "on notice that further efforts to end the unlawful conduct will be in vain. A fact finder could reasonably determine that Hampton was not on "notice" until sometime after the filing of the complaint in this action and, therefore, timely. Based thereon, Hampton maintains that the requisite showing been made that actionable instances of harassment occurred within the statutory period and involved an "ongoing course of conduct,” such that Hampton's harassment claims for the earlier conduct, even dating back to 2007, are not time-barred. Interested Witnesses In Reeves v. Sanderson Plumbing Products, Inc. $30 U.S. 133 (2000), the United States Supreme Court articulated the summary judgment standard as it pertains to the testimony of interested witnesses in the employment cases: [AJ]though the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.” Id. 530U. _ at 151 (citations omitted). All of LAUSD's currently employed witnesses were interested witnesses. It is obvious from the records that the witnesses relied upon by LAUSD were largely, or part of the group of people responsible for the discriminatory conduct or utterers of the offensive words complained of, or ‘were the same personnel to whom Hampton reported the harassment but failed to investigate and/or take action. Principal Rios, Mercado and Miranda formed the nucleus of the witnesses who testified against the Hampton at the District’s termination Admi hearing, whose findings led to Hampton’s termination as a teacher. Dr. Mercado it was who subjected Hampton to incessant degrading pretextual fitness for duty examinations and in March 2009, recommended that she was not fit for duty, thereby setting the stage for her dismissal. ‘The failed Stull tests were administered by or under the direct control of Principal Rios who was in the saddle and carefully orchestrated Hampton's dismissal. That the scheme was careful orchestrated as referred is self-evident from the supporting declarations of Tamara Honegan, { 3; Dr. Plascencia $3; Roxanne Miranda {4 Dr. Plascencia and Tamara Honegan in identical paragraph 3 of their respective declaration, gave exactly the same account, used exactlythe same language, word count, order of words and punctuation, etc., and merely appended their signatures to a document that they all had rehearsed. Roxanne Miranda mirrored or Xeroxed the same account of the event in paragraph 4 of her declaration, with perhaps a few modifications at the foot thereof. The only notable difference to the declarations was substitution of names of the witnesses to the incident. Nothing can be more revealing of collusion by the participants to get Hampton out of the school system. This is the same conduct Hampton alleged Principal Rios engaged in with the children in the school. Principal Rios, Miranda and Dr. Plascencia in one form or the other made racist remarks against Hampton, LAUSD tried to minimize the allegation of racial discrimination by pointing out that at La Salle; Hampton made similar allegations against Principal Thomas, an African-American. That misses the point. Hampton's complaint before the court is that LAUSD provided an environment where Hampton was racially discriminated and retaliated against. There is environmental factor to discrimination. If the work environment was as toxic and hostile as described, it is no excuse that others equally situated as Hampton jumped on the bandwagon against her. In other words, that Principal Thomas or other people might have treated Hampton disparately does not prevent a finding of the specifically targeted racial attack against her. Erratic behavior and inappropriate conduct LAUSD references Hampton's erratic behavior and inappropriate conduct as legitimate business reason for her dismis with LAUSD, Hampton worked with Compton Unified School District from 1991 to 1998, without adverse incident and was commended by her employers, parents and her students. At LAUSD, Hampton also taught from 1998 to October 2007 without adverse incidents. This is a cumulative total of sixteen years. She testified that while employed at LAUSD, she received |. This has to be put in the context that prior to her employment favorable evaluation from John Muir Middle School, the penultimate place of assignment before her dismissal, and that when she transferred from Manchester Elementary in July 2005 to 95th Street, some of the school children transferred with her. Then at 107th Elementary, some parents moved their children to her classroom. ‘The major turning point in the relationship appears to be October 2007 when Hampton was forcefully dragged from her classroom and compelled to undergo drug and alcoholic tests, followed by psychological examinations and incessant referrals for fitness for duty evaluationsHampton sums up her total experience going through that ordeal and in working with LAUSD, as one of total dejection, helplessness and resignation. According to her, the relationship left her physically and mentally damaged as she suffered shame, mental anguish and stomach pain and it tured her experience as a teacher into an ongoing nightmare that sapped her energy and challenged her physically and emotionally. (Hampton Decl. 34, 35.) [CT p 81:22-28]. Hampton recounts being picked on, and how her supervisors and LAUSD employees "made fun of the outward physical appearance and the symptoms of my stress by always accusing me of being “disheveled” disorganized” whereas the truth was that LAUSD’s employees, supervisors and principal Rios inflicted mental distress against me out of racist animus they held against me.” (Hampton Decl. 36.) (CT p 82:2-7]. But nothing more sums up her reaction to the harassment suffered by the discriminatory conduct of LAUSD than these words: "the forced alcohol and drug tests came back negative, but the deed was done. I was humiliated and defeated." Hampton Decl. 55”. The question before this court ultimately is whether the conduct complained of is capable of, and did denigrate and degrade Hampton to a state where no reasonable human being could be expected to function effectively, and subject her to hostile environment that is capable of, and seriously affected her performance and psychological well-being. Ifa trier of fact were to so hold, then whatever behavior attributable to Hampton by LAUSD is ex post facto, as its own. conduct retroactively is causative of the manifestation complained of. That also changes the consequences of whatever “errant behavior” alleged against Hampton by LAUSD. It is therefore unrealistic for LAUSD to seek to rely on a situation it created, to justify its dismissal of Hampton from employment. It should be likened to a cascade; if LAUSD destroyed her sense of self- worth, broke her self-confidence and ability to perform at work, then it has to own the employee it got. It is not enough for LAUSD to point out that at the deposition, Hampton repeatedly referred to African-Americans who treated her differentially as being members of the Delta Sigma Theta sorority, or other evidence of erratic behavior. A trier of fact may just find that the discriminatory conduct complained of was directly responsible for Hampton’ said behavior This is not a matter for disposal by summary judgment motion.‘An employer is strictly liable for the harassing conduet of its supervisors, without need to rely on agency. State Dept. of Health Services v. Sup. Ct. (McGuinness) (2003) 31 Cal.4th 1026, 1042, LAUSD Superintendent McKenna, Director Dr. Rosalinda, Medical Director Dr. Mercado and Principal Rios are executive and administrative managers/officers of LAUSD. Individually and collectively, they are involved in all aspects of managing the affairs of its personnel, and as it related to Hampton’s employment. They approve every open position, who to hire or terminate, and the recommendation as to who gets raises and promotions. The aforementioned supervisors are the agents of LAUSD. They all were aware of the discriminatory practices complained of and were complicit in one way or the other in that they either participated in or condoned said practices by failing to investigate or take action to abate same, or were actual participants in the occurrences. Dr. Mercado subjected Hampton to unwarranted and abusive fitness for medical tests and in March 2009, recommended that Hampton was not fit for service, whereas Hampton was still able to work as a teacher. Principal Rios as Hampton's immediate supervisor at 107th Elementary fully participated in and/or condoned the racist practices against her by Miranda and Plascencia. Jointly with ‘Miranda and Plascencia, he took invidious and disparate actions against Hampton, which included falsifying her work evaluations; wrote false accusatory reports against her; had students with disciplinary problems sign complaints containing false allegations accusing Hampton of conduct violative of LAUSD’ policies. The sole purpose and motivation was to embarrass Hampton and cause her to be terminated from her appointment as a teacher with the LAUSD for no other reason than the immutable fact that she is African-American. ‘Non-responsiveness of Principal Rios to Hampton's concems and each observation Hampton made or reported to him concerning any of her students emboldened the said students to become more rebellious and more daring. For example, when one of the students slammed the classroom door on Hampton’s hand, she reported the incident to Rios, but he tumed it around to accuse Hampton of threatening to arrest the student. [Hampton Depo 174:12-19; Hampton Decl. 130.] [CT p 80:26-28; p 81: 1-4]. Dr. Rosalinda the District Director failed to investigate Hampton’ escalated report about the sexual incidents by some students and she told the Hampton to “stop complaining,” and “you need to think about leaving your position”. [Hampton Depo. 179:6-25; 180:1-25; 181:1-25: 182;182:1-25; 183:1-25]. The conduct of the aforementioned individuals created the foundation for the false accusations that led to the grossly unfair firing of the Hampton from her position as a teacher. LAUSD is strictly liable for their wrongful conduct because the acts committed by a supervisor ... even on a single occasion, may well be sufficiently serve to alter the conditions of employment and give rise to a hostile work environment claim. Dee y Vintage Petroleum, Inc. (2003) 106 Cal. App 4" 30, 36-37. ‘Therefore, triable issues of material facts exist as to whether the School District is liable for acts of LAUSD’s non-supervisory coworkers as set forth in section 12940 (j)(1) because Defendants knew of the harassing conduct and took no remedial action beyond attempting to dissuade Hampton from complaining further. In addition, and because the supervisors are “strictly liable” for their wrongful conduct as described above, the fourth and final prong of the Fisher analysis has been satisfied. Iv RETALIATION Itis an unlawful employment practice for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part..." Gov. C. § 12940 Subdivision (f). California law prohibits retaliation against an employee for opposing employment practices which an individual reasonably believes to exist and believes to be in violation of FEHA - Code of Regulation, Title 2, 7287.8(a)(1(C). To establish a prima facie case of retaliation, a plaintiff must show the following (a) engagement in a protected activity; (b) subsequent adverse employment action; and (c) a causal link between the two. Yanowitz v. L'Oreal USA, Inc. supra, 36 Cal. 4th at p.1042. A Hampton Engaged in Protected Activity An employee's complaints regarding unlawful discrimination are "protected," and actions taken against the employee after such complaints may constitute retaliation. Fisher, supra, 214 Cal.App.3d at 614. Hampton engaged in several protected activities: ‘Hampton has a responsibility to notify the school authorities of violations of its rules, so, her report to Principal Rios that some students were engaged in or simulating same-sex sexualconduct in the students’ bathroom is a protected activity. The appropriate legal standard is subjective: did Hampton oppose what she reasonably and in good faith believes to be unlawfal conduct? ‘It is good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case” Flait v. North American Watch Corp.,.3 Cal.App.4" 467, 476 (1996). In the face of Rios’ manipulation of the incident, Hampton decided to escalate the report to Dr. Rosalinda, Hampton opposed the discriminatory practices of supervisors and employees of LAUSD and reported to Superintendent Dr. Deasy, Dr. Rosalinda, Dr. MeKenna, and Mr. Narimatsu a one-time Superintendent of Local School District that she was being racially discriminated against by Principal Rios, Miranda and Plascencia. Hampton notified Superintendents Deasy and Dr. McKenna about the racial discrimination and retaliation by Rios, Miranda and Plascencia via email. She personally met with Dr. McKenna at his office to complain of being targeted because of her race. [Hampton Depo 174:1-25; 175:1-25; 176-1-25; 176:14-25; 178:1-25]. No Magical Words Needed to Oppose Unlawful Conduct: Despite overwhelming evidence to the contrary, LAUSD argues that Hampton did not complain of being discriminated against. There are no “magic words” which must be spoken in order to oppose unlawful conduct. In fact, no words at all need be spoken; opposition can consist of a mere refusal to carry out an order or policy. See, Moyo v. Gomez, (9" Cir, 1994) 40 F.3d 982, 985. Meritor Savings Bank v. Vinson, supra, 477 US. at pp. 72-73 [91 L-Ed.2d at pp. 62-63 (sexually harassed employee's failure to grieve through proper internal channels does not insulate employer from liability. The employer's procedures were not calculated to encourage victims of harassment to come forward). Furthermore, LAUSD knowledge of discriminatory practices can constitute constructive knowledge. LAUSD describes its relationship with Hampton thus: "Plaintiff manifested repeated social confrontations with peers and complained of favoritism for other teachers by administrators, victimization, and alienation by coworkers." (UF 6.) In other words, LAUSD was aware of her complaint of being discriminated against, but chose to hold it out as manifestation of her inability to work with fellow employees. Accordingly, Hampton has presented evidence sufficient to create triable issues with ‘tespect to the "protected activity" element of the Yanowitz analys BHampton Suffered Adverse Employment Action California, "workplace harassment, if sufficiently severe or pervasive, may and of itself constitute an adverse employment action . ." (Citations.)" Yanowitz v. L'Oreal USA, Id. ‘Hampton was persistently intimidated by being subjected to pretextual fitness for duty ‘medical tests and even medical suspension by Dr. Mercado, with a view to creating adverse ‘employment record against her; Hampton suffered series of highly damaging adverse employment actions including, without limitation, discrimination and retaliation based on her race, harassing fitness to duty medical ‘ex and eventual dismissal. LAUSD identified its adverse action against Hampton, that while she was a teacher at La Salle, she was physically escorted out of her class and compelled to undergo medical evaluation for alcohol and drug substances, including psychological evaluation, which Hampton described as humiliating and defeating, Hampton was degraded from teaching 5 Grade to 2™ Grade, whereas immediately prior to her appointment at 107th Elementary, Hampton taught 6th Grade at John Muir Middle School. Hampton was denied administrative and material support necessary to succeed in the school. Principal Rios failed to assign teacher assistant, and for a period, she was denied janitor and her classroom door lock was changed, so she had to stay behind after school to personally clean her classroom. Principal Rios procured students to produce reports against Hampton, which reports he had personally dictated and/or doctored, and he personally in conjunetion with others wrote false accusations against Hampton as a basis of the disciplinary action, which led ultimately to Hampton’s dismissal. ‘The fact that she taught successfully at Compton Unified School District without adverse incident is a testimony to the fact that LAUSD took steps to ensure that Hampton failed and was dismissed. Gov. C. §12940, subdivision (h) prohibits harassment in the workplace and requires that an employing entity, its agents or supervisors, who know or should have known of harassing conduct "take immediate and appropriate corrective action" and put in place a system to protect the employee from discrimination and promptly investigate complaint. The employing entity ‘must take all reasonable steps to prevent harassment from occurring. Having acknowledged that ‘Hampton raised issues concerning adverse treatment by her supervisors, administrators and/orcoworkers, LAUSD failed to provide evidence that it investigated the complaints or put in place process for resolving them. Therein the statute was violated. c Causal Link Exists Between the Protected Action and the Adverse Employment Decision To demonstrate causality, plaintiff must present evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse action taken against him. "The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in mn." (Jordan v. time between the protected action and allegedly retaliatory employment deci Clark (9th Cir. 1988) 847 F.2d 1368, 1376.) a. LAUSD Was Aware That Hampton Engaged In the Protected Activities ‘There is sufficient circumstantial evidence from which a trier of fact could conclude that there is a causal link between Hampton's attempt to perform her duties under Gov. C. § 12940 and her termination. Evidence shows that highly placed LAUSD officers who participated in the decision to dismiss Hampton or to whom Hampton reported the discrimination, and who failed to take corrective actions to address same were responsible for the dismissal. This is probative of LAUSD's knowledge that Hampton had engaged in protected activities and that her employment ‘was terminated because she engaged in these activities. LAUSD's awareness that the Hampton ‘Plaintiff manifested engaged in protected activities is further established when it states that: repeated social confrontations with peers and complained of favoritism for other teachers by administrators, victimization, and alienation by coworkers." (UF 7.) b. Temporal Proximity wvidence based on timing can be sufficient to let the issue go to the jury, even in the face of alternative reasons proffered by the defendant.” Johnson v. UCP Children’s Foundation 173 Cal. App 4" at p. 757. This temporal proximity is sufficient for causation. “The Ninth Circuit has found proximity of a few months to be sufficient to establish an inference of causation...” Lamont v, Anning-Johnson Co., 2011 U.S. Dist. LEXIS 60302, *8, 11 (D. Or. June 6, 2011) (emphasis added} (a three-month period between the protected activity and adverse action was sufficient tosatisfy minimal prima facie burden that complaint could have reasonably motivated the ‘employer's retaliatory action). (See Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751- 52 (9th Cir. 2001) (“proximity in time between the protected action and the allegedly retaliatory employment decision [iJs one [way] a jury logically could infer [that the plaintiff] was terminated in retaliation.”) (internal quotations omitted); see also Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). Temporal proximity can itself constitute sufficient circumstantial evidence of retaliation as to both prima facie and pretext. Bell v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 2003); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731-32 (9th Cir. 1986). Evidence shows that Hampton was dismissed a few months after her 15" year teaching at LAUSD, though she had worked for LAUSD for more than 15 years. This evidence is sufficient to withstand summary judgment on the issue of LAUSD's retaliatory motives. Stuart v. North American Watch Corporation 3 .pp.4" 467, 479 (1992). In sum, Hampton has established the three elements of a prima facie case under Gov. C. §12940. First, evidence shows that Hampton engaged in protected activities in that she was required by law to take immediate corrective action to report inappropriate sexual activities in the bathroom, which she did. She also opposed discriminatory practices. Whether Hampton was ‘motivated by a reasonable, sincere and good faith belief that the sexual conduct actually occurred is a triable issue to be determined by a trier of fact. Second, Hampton was subject to adverse employment action when she was dismissed from employment. Third, there is sufficient circumstantial evidence of a causal link between the protected conduct and the dismissal to allow this issue to be resolved by a fact finder. Legitimate Business Justification LAUSD argues that its decision dismissing Hampton was for non-discriminatory reasons: that it was done for cause based on concerns by parents, students, staff, and Principal Rios’ own observation of her teaching. LAUSD's asserted business reasons are sufficient to permit a trier of fact to conclude that its employment decision may not have been motivated by animus. (Yartzof{v. Thomas, supra, 809 F.2d at p. 1376.) These reasons are not, however, sufficient to justify judgment as a matter of law if Hampton presents evidence that a fact finder could find they constituted a pretext, An employee may rebut the employer's affirmative defenses with evidence that the employer intended to discriminate, and that the affirmative defense claimed ismerely a pretext for discrimination.” Maxwell, 803 F.2d at 446 (citing Kouba, 691 F.2d at 876) (emphasis added). 1. Contrary to LAUSD’s assertion, no report was exhibited showing concern from any staff, other than those directly involved in discriminating against Hampton. 2. The alleged concems raised by parents were from parents of those whose children who had disciplinary issues or who were procured by Principal Rios to sign false reported against Hampton. This however, is counterbalanced by Hampton’s overall experience with LAUSD. For example, some parents transferred their children from Manchester Elementary to 95" Street when Hampton moved over to 95" Street and at 107th Elementary School students moved to Hampton's class. 3. LAUSD’ case relied heavily on Dr. Mercado's testimony and medical assessment of Hampton. (UF $44, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16,17, 18, 19, 20, 21, 22, 23, 24, 25, 26,27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 46, 50, 51.) Principally, Dr. Mercado personally subjected Hampton to harassing medical evaluations. Dr. Mercado’s supposed medical opinion is laced with subjective, racially-tinged conclusions that show she is not a witness of fact. Dr. Mercado’s opinion is self-impeaching and has no value because, in March 2009, she opined that ‘Hampton was not fit to teach, yet Hampton successfully retained her teaching privilege with LAUSD for at least four years, taught in several LAUSD schools and was entrusted with the students until her dismissal, Dr. Mercado spoke knowledgably of her familiarity with Hampton’s behavioral history, yet failed to explore any possible causative relationship, positively or negatively, between Hampton's behavior and the work environment. 4, Hampton acted within the confines of LAUSD policies in her interactions with her students and co-workers. It was Rios, Mercado, Miranda and Plascencia who conspired among, themselves to foment, distort and negatively manipulate Hampton’s teaching records in order to distort Hampton’s employment evaluations for the sole purpose of carrying out their race- discrimination practices against the Hampton. 5, LAUSD argues that Hampton received two (2) Below Standards Stull Evaluations. LAUSD failed to address, the objectives of the test, how it is administered, by whom it is administered, how it is scored, or the consequences, if any, of Below Standards Evaluation. An examination of the test shows that it is subjective and is not a true measure of ability to function properly in the classroom. Additionally, it is administered locally by the school administrator, inthe case, Principal Rios and others within the school, together with peers against whom Hampton complains of discrimination and the evaluees. Hampton was not evaluated with a Stull by Mr. Rios during the 2011-2012 school year. Principal Rios wrote an evaluation form that Hampton did not sign because of Principal Rios’ practice of falsifying students’ complaints against the Hampton. Where the person against whom Hampton complains of discrimination and retaliation is also the person that administers the Stull Evaluations, then the result of the testis not worthy of credence. Stuart v. North American Watch Corporation 3 Cal.App.4" 467, 479. Furthermore, in a situation where Hampton complained of a workplace environment so onerous that it seriously affected her performance and psychological well-being, a fact finder could reach the conclusion that the failed Stull Evaluations, if true, were resultant effect of the discriminatory conduct inflicted on Hampton by LAUSD. Thus, LAUSD cannot rely on the tests. Put in context, during the end of 2010 and 2011/2012 school years, Hampton’s class was filled up with a significant number of children with serious disciplinary problems and students expelled from other schools due to truancy and defiant problems. Principal Rios and his supervisors at the Schoo! District provided moral and material support to the Hispanic and White teachers who had in their classrooms similarly situated problem students. Rios was proactive in his support and resolution of students issues complained of by the Hispanic and White teachers and instead, amplified and encouraged truancy in Hampton’s class by encouraging the bad students to sign and copy notes that He (Rios) authored that twisted each incident against, Hampton. This unfair and racially motivated practice allowed Principal Rios in conjunction with Dr. Mercado and others to write false and fabricated lies in Hampton’s work evaluation. Therefore, the proffered reason to write improbable and false performance evaluations based on false accusations against the Hampton, was motivated by racial animus, which was the factual basis of Hampton’s termination as a teacher; said termination was based as it was, on an implausible scenario is pretextual. As in Aguilar, “... an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant's proffered explanation.” (See Aguilar vy, Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 [107 Cal. Rptr. 2d 841, 24 P.34 493].) Viewing the evidence in the light most favorable to Hampton, a reasonable trier of fact could conclude that LAUSD's articulated reasons for terminating Hampton's employment are not worthy of credence.RES JUDICATA MISAPPLIED [2] The doctrine of res judicata codified in Code of Civil Procedure sections 1908, 1908.5, 1909, 1910 and 1911, gives conclusive effect to an carlier judgment in subsequent litigation involving the same controversy. (Busick y. Workmen's Comp. Appeals Bd. (1972) 7 Cal. 3d 967, 972-973 [104 Cal. Rptr. 42, 500 P.2d 1386].) "Where a reasonable opportunity has been afforded to the parties to litigate a claim before a court which has jurisdiction over the parties and the cause of action, and the court has finally decided the controversy, the interests of the State and the parties require that the validity of the claim and any issue actually litigated in the action shall not be litigated again by them.'... The test ... is two-pronged: (1) The court must have jurisdiction over both the parties and the subject matter in the dispute, and (2) the same cause of action must be fully litigated on [157 Cal. App. 3d 431] its merits." (De Weese v. Unick (1980) 102 Cal. App. 34 100, 105], italics in original.) The doctrine applies to all courts, and a federal court judgment has the same effect in the courts of this state as it would in a federal court. (Martin v. Martin (1970) 2 Cal. 3[5] While it is true that res judicata will only bar relitigation of the same cause of action by the same parties, the question of whether a cause of action is identical for purposes of res judicata depends not on the legal theory or label used, but on the "primary right" sought to be protected in the two actions. The invasion of one primary right gives rise to a single cause of action. (Slater v. Blackwood (1975) 15 Cal. 3d 791, 795].) Moreover, the "cause of action” is based on the harm suffered, as opposed to the particular theory asserted by the litigant. (Peiser v. Mettler (1958) 50 Cal. 2d 594, 605].) "Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. 'Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief {Citations.]" (Slater v. Blackwood, supra, 15 Cal. 3d 795, italics in original.}d 752, 761.)...See, Johnson v. American Airlines Inc. 157 Cal. App. 3d 430]. The Court in Johnson, supra, clarified the application of the doctrine of Res Judicata by explaining the “primary right” doctrine as being the primary right sought to be protected in the previous action. In the previous action, the Respondent LAUSD sought an administrative court judgment to back its termination of the Appellant from her long time employment as a teacher in the Los Angeles Unified School District. The primary right that previous hearing was the Appellant's right to be a teacher in the school district. However, the right the Appellant sought to protect in the underlining lawsuit was and is clearly different from the previous primary right of being a teacher. In this action, the Appellant raised Race Discrimination and Hostile Work environment against the Respondent, based on the continuous invidious conduct of the Respondent's employees and agents against the Appellant. Appellant scek damages as a result of the said discriminatory practices against the Appellant.‘The Administrative Law Court that heard the “teacher Termination hearing” did not have jurisdiction to award damages against the Respondent and thus, its judgment could not be said to operate as a bar to the present action, since that Administrative Law Court lacked the jurisdiction to award punitive damages and/or general damages, the Appellant secks in the present action, Evidentiary Objection ‘The summary judgment motion relied heavily on Declaration and Report of Dr. Mercado. (UF 44, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16,17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 46, 50, 51.) The expert report contained hearsay upon hearsay, legal conclusions and arguments, and no foundation as to any personal knowledge, ‘except as it relates to physician-patient privileged information, Hampton raised evidentiary objections to the testimony. The trial court failed to rule on the objections. By failing to rule on the objections, the trial court is deemed to have overruled the objections. The trial court is wrong in its decision overruling the objections. ‘The Immaturity of Children as a Factor in Duty of Care California cases have cited the immaturity of children as a factor in the issue of a school district's duty of care to students. In Forgnone, supra, 41 Cal.App.24 423, the court took up the case of a student who had her arm broken in a scuffle with another student uring an unsupervised lunch period. Citing former School Code section 5.543 which, like the abovementioned Education Code section 44807, required teachers to hold students accountable for their behavior on the way to and from school, on the playground and during ion rule recess, and noting that the complaint in the case alleged a state board of educ which, like section 5552 of title 5 of the California Code of Regulations, required that teachers should supervise students who are on school grounds during intermissions and before and after school if special playground supervision was not otherwise provided, the Forgnone court stated that the purpose of the law requiring supervision of students "is to regulate their conduct so as to prevent disorderly and dangerous practices which are likely to result in physical injury to immature scholars under their custody." (Id. at pp. 425-426, italics added.In this case the District acting through its employees and agents as discussed above and hereon incorporated by reference as though set forth in full herein, undermined the Plaintiffs authority in the management of her students, Principal Rios encouraged and indeed precipitated truancy in the Plaintiff's classroom, ‘The District by and through its agents manipulated the students’ truancy it engendered against the Plaintiff in a series of false write-ups and accusations that were motivated primarily by the racists animus against the Plaintiff as described above and herein incorporated by reference. In our case Defendants’ misconduct affected the general public at large. The California Supreme Court held that a public policy claim may be based upon an established fundamental policy for public benefit that is either rooted in a specific statutory or constitutional provision or in an administrative regulation, See Green v. Ralee, supra, (1998) 19 C.4th 66, In California, employees may bring a tort action for wrongful discharge if their employer discharges them for a reason that violates fundamental public policy. Tameny v. Atlantic Richfield Co., (1980) 27 C.3d 167, 176. The elements of the tort cause of action are (1) the existence of a public policy, (2) actions undertaken by the employee in furtherance of that public policy, and (3) adverse employment action against that employee in retaliation for those acts. Plaintiff has properly pled all three elements of this tort cause of action. There is no requirement, as defendant suggests, that Plaintiff report his concerns to some governmental or law enforcement agency. See Green v. Ralee, supra, 19 C.4th at 73, the plaintiff reported his concerns only to his supervisors, "at no time did he complain to outside government sources.” In addition, Green held that an employee need not prove an actual violation of law to ‘maintain a public policy tort action, it suffices if he reported a "reasonably based suspicion” of illegal activity, Id. at 87, affirming Collier v. Superior Court, (1991) 228 CA3¢ 1117, 1125. In Tumer v. Anheuser-Busch, Ine., 7C.4th 1238, plaintiff was forced to resign after complaining to management about violations of intemal operating practices. Id. at 1256-1257. Plaintiff did not point to a statute or constitutional provision that applied directly to defendant, and made only vague allegations that the defendant had violated "Alcohol, Tobacco and Firearm laws." Id. at 1257.‘We have an entirely different situation in the case at bar. A multitude of state and federal statutes and regulations apply to Defendant as mentioned above. Racial Animus Contrary to Principal Rios assertion that he did not terminate Plaintiff, Rios a Hispanic male set the stage by falsifying, manipulating and conspiring with Plascencia a Hispanic female and Miranda a Hispanic female to distort my employment performance records and to distort any and all incidents pertaining to my presence and teaching assignment at my place of work, thereby causing LAUSD and its agents to terminate my employment as a teacher. RES JUDICATA AND COLLATERAL ESTOPPEL DOES NOT BAR THE PRESENT CLAIM BECAUSE THE DISCTICT DID NOT MAKE AVAILABE TO THE PLAINTIFF THE RECIRDS OF THE PROCEEDINGS UNTIL AFTER THE DEADLINE TO APPEAL THE ADMINSTRATIVE PANEL DECISION HAVE EXPIRED Contrary to the Defendants assertion that the entire claim by Plaintiff is barred by the doctrines of Res Judicata and Collateral Estoppel, Plaintiffs claim is not barred because the District failed to time notify and make available at its costs the records of Administrative proceedings to the Plaintiff until more than 60-days after the Administrative court decision terminating the Plaintiff became final thereby denying the Plaintiff due process. In the instant matter, Plaintiff did not obtain the records necessary for a timely filing of the Writ of Mandamus challenging the Administrative Law Judge decision; Plaintiff was asked by the District to reimburse over $7,500 towards the costs of the Administrative law judge; which Plaintiff could not afford and District did not give was not given the records of the Administrative proceedings until after August 2014. It is important to note that the Administrative court decision was made on May 30", 2014 See Defendant's Exhibit 29, is copy of the said Decision. But for the delay in turning over the record of the said proceedings until after the 30-days deadline to file a Writ of Mandamus, she would have timely prepared and filed a Writ of Mandamus challenging the Administrative Law Judge Decision. Imposing the said costs and burden on her was unconstitutional and violative of her Right to Due Process. See: “The imposition of a cost or risk upon the exercise of the right to a hearing is impermissible if it has” ‘no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them’ [citation] ...” Fuller v. Oregon (1974) 417 US. 40, 54 [94 S. Ct. 2116, 2124, 40 L. Ed. 2d 642].) The statutory cost provision must have a real and substantial relation to a properlegislative goal. (Coleman v. Department of Personnel Administration (1991) 52 Cal. 3d 1102, 1125 [278 Cal. Rptr. 346, 805 P.2d 300].) [3a] Accordingly, if section 44944(c) has no purpose other than to chill the exercise of the right of teachers to demand a hearing before they are dismissed or suspended, we must hold the statute unconstitutional on its face. As we shall explain, the actual text of section 44944(¢) establishes a standard for imposing costs that invariably will chill the exercise of the right of teachers to a hearing, and its provisions thus inevitably pose a present total and fatal conflict with applicable constitutional prohibitions. (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084) ..” Neither the School District nor the Office of Administrative hearing made available to the Plaintiff records of the Administrative hearings despite Plaintiff s repeated requests to both agencies to date. See Exhibit “B” is a copy of letter from the School Districts trial Counsel Plaintiff's request when after Plaintiff made formal Office feigning inabi to comply requests from both agencies for copies of the transcripts and records of the Administrative hearing in Mid July 2014. Further, The District argument that the instant claim is barred by the Doctrine of Res Judicata and Collateral Estoppel is not persuasive, as it has failed to carry its initial burden required for the application of the said doctrines in this matter. “The District relied in particular on Johnson, supra, 24 Cal.4th 61, which held that “when, as here, a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the adverse finding is binding on discrimination claims under the FEHA." (id. at p. 76.) In support of its res judicata argument, the District cited Takahashi, supra, 202 Cal.App.3d 1464, in which a public school teacher's civil discrimination claims were barred by the trial court's denial of her writ petition challenging an adverse administrative ruling. (Id. at pp. 1474, 1481-1485...” See. Johnson v. City of Loma Linda (2000) 24 Cal.4th 61. ‘There is no doubt that the Plaintiff's failure to file the Administrative writ of mandamus against the Administrative law judge decision, was due to the violation of the Plaintiff's right to due process by the District and as such, the District should not be allowed to benefit from its failure to comply with the requirement that it should have made administrative hearing transcripts available to the Plaintiff in a timely manner. VII. CONCLUSION Based on the foregoing, Appellant Diane Hampton respectfully requests that this Court reverse and remand the Trial Court's summary judgment decision for further proceedings.Dated: May 17, 2017CERTIFICATE OF WORD COUNT (Rule 8.204) I, Levi Reuben Uku, counsel for appellant, certify pursuant to the California Rules of Court, that the word count for this document is 13,670 Words, excluding the tables, this certificate, and any attachment permitted under rule 8.204(d). This document was prepared in Words, and this is the word count generated by the program for this document. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. és/California, on 5/17/2017. Executed at Los Levi Réaben Uku, Esquire Attorney for Appellant(CERTIFICATE OF MAILING) ) ) 1am employed in the County of Los Angeles, State of California. I am over the age of 18 and not party to the within entitled action; my business address is: 1055 W. 7" Street, Suite 3300, Los Angeles, CA 90017. On 5/17/2017, I served the document(s) described as Opening Brief on the interested parties in said action, by sending via Us Mail a true copy thereof enclosed in a sealed envelope(s) addressed as follows: f ‘Adam Grable, Esquire Hon. Richard E. Rico LAUSD Superior Court 333 S. Beaudry Ave. 20" Floor 111 N Hill Street, Dept 17 Los Angeles, CA 90017 Los Angeles, CA 90012 \_BY MAIL | am readily familiar with the firm’s practice of collecting and processing of documents and correspondence for mailing with the United States Postal Service/FeDEx. Under that practice, on the above date the envelope to be mailed by Certified Mail. BY PERSONAL SERVICE T caused such envelope to be delivered by hand to counsel as addressed as above. BY FACSIMILE TRANSMITTAL I caused said document to be transmitted Via Facsimile at the Facsimile number(s) indicated above. V STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. FEDERAL I declare that I am employed in the office of a member of the Bar of this court at whose direction the service was made.