Summary
In Waszczuk v. Regents of the University of California (Oct. 10, 2017, C079524) [nonpub. opn.], this court affirmed the granting of the anti-SLAPP motion in favor of some of the individual defendants in this case.
Summary of this case from Waszczuk v. Regents of the Univ. of Cal.Opinion
C079524
10-10-2017
JAROSLAW WASZCZUK, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201300155479CUWTGDS)
Although Jaroslaw Waszczuk, a self-represented plaintiff, purports to appeal the trial court's order granting five individual employees of the University of California's special motion to strike (Code Civ. Proc., § 425.16) four causes of action arising from their involvement in his termination, he does not argue the merits of the motion but insists the judgment must be reversed because of systemic corruption including collusion between his then lawyer, defense counsel, and the trial judge. He misunderstands his burden on appeal, ignores the dispositive issues, provides no evidence of corruption or untoward collusion, and fails to demonstrate either relevance or prejudice from the shortcomings he cites. We need go no further than to answer the contentions he raises, and in finding no merit in those claims, we affirm.
PRELIMINARY STATEMENT
Plaintiff, a Polish immigrant, feels deeply aggrieved by the University of California (the University), his lawyer, the defense lawyer, and the trial judge. A brief excerpt from a letter he sent to the general counsel for the University reflects his bitterness as well as his belief that there is much more at stake than his mere wrongful termination lawsuit. He wrote: "The stake in this lawsuit must be a lot bigger and more important than the life of a 63-year-old Polish refugee who escaped communist oppression and was promised protection from oppression in his new country by the US government. Instead of protection from oppression, the Polish refugee received treatment from the University of California that has been a lot worse than the treatment he received in the Polish communist prison, where the communist's prison guard was more respectful to the political prisoners than UC management to its own employees." His experience has left him emotionally distraught. At the end of a hearing in the trial court, he announced he was done and was going to go outside of the courtroom and shoot himself.
While plaintiff's pain is clear, his legal analysis is not. We have carefully scrutinized his briefs and the record in a diligent attempt to decipher his legal theories. Much remains a mystery. We must reiterate what the trial court admonished plaintiff. "At the outset, the Court would note that a self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 944.) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984." We add that plaintiff has an equal responsibility to follow the California Rules of Court applicable to appeals, no matter how sympathetic his claims may seem to himself or us. It is a responsibility he has ignored to his peril.
Plaintiff's most glaring and consistent violation of the rules is his failure to cite to the record. He makes grandiose accusations against the University for illegally generating and selling electric power and for tax evasion, but those allegations are not supported by citations to the record and are not relevant to the special motion to strike. Plaintiff fails to appreciate the limited scope of our review, which stands in stark contrast to the wide-ranging allegations plaintiff lodges which are untethered to the second amended complaint or the special motion to strike. We are compelled to ignore any factual allegations that are not supported by citations to the record.
An "appellant must support all statements of fact in his briefs with citations to the record [citation] and must confine his statement 'to matters in the record on appeal.' [Citation.]" (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29.) "[I]t is counsel's duty to point out portions of the record that support the position taken on appeal." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) The Court of Appeal must not search the record on behalf of an appellant or serve as "backup appellate counsel." (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
Plaintiff loses this appeal, but it is not the end of his lawsuit for wrongful termination. The trial court reminded plaintiff at the hearing on the special motion to strike that the Regents of the University of California (the Regents) were not protected if they discriminated or retaliated against him and, therefore, "[i]ndependent of the five individuals who are before the Court on this motion, [plaintiff] still retains his right to sue the Regents because they are still in the lawsuit and he's still the plaintiff." In this context, we recite the brief facts relevant to the issues plaintiff raises on appeal.
FACTS
Plaintiff worked in the University of California Davis Medical Center's Plant Operations and Maintenance Department for 13 years. He received many years of favorable performance reviews. In 2007, however, he was given a disciplinary transfer from the central plant to the HVAC/plumbing shop. He filed a grievance and ultimately entered into a settlement agreement with the University whereby he agreed to the transfer in exchange for a promotion to an exempt position with a more prestigious job title.
In 2011 the University again initiated an investigation of plaintiff based on complaints that he had violated University policies by engaging in acts of ethnic discrimination constituting hate incidents in the workplace. He was terminated in 2012. He appealed the termination and ultimately filed a whistleblower retaliation complaint. In this court, he fixates on his belief the University's suspension, investigation, and termination were nothing more than a "witch hunt" designed to remove him, preferably by getting him to quit, and thereby enable the University to resume its alleged tax-free illegal power sales. He asserts, again without citation to the record, the University attempted to assassinate him.
Plaintiff filed his first complaint, in pro. per., in December 2013. The complaint included six causes of action: wrongful termination; retaliation; the intentional infliction of emotional distress; failure to prevent harassment, discrimination, or retaliation; breach of the settlement agreement; and violation of the University's Personnel Polices for Staff Members (PPSM) 23. Plaintiff thereafter hired a lawyer, Douglas Stein, who filed a first amended complaint on his behalf in June 2014. The first amended complaint set forth eight causes of action, including a cause of action entitled "Breach of Written Contract." The written contract referred to the settlement agreement plaintiff reached with the University to resolve his first grievance. The first amended complaint did not, however, contain a cause of action for violation of PPSM 23.
In a meet and confer letter dated August 19, 2014, Michael Pott, representing the Regents and the employees sued in their individual capacity, described a number of deficiencies in the first amended complaint "that warrant the filing of a demurrer unless they can be resolved by amendment." Stein spent 10 hours reviewing the first amended complaint and researching the law in light of the alleged deficiencies set forth in Pott's letter. By letter dated August 26, 2014, Stein agreed to amend the complaint in response to those deficiencies he found legitimate and he explained why he rejected many others.
Stein prepared a second amended complaint with the same eight causes of action. He signed the second amended complaint on September 8, 2014. Unbeknownst to him at the time, his license to practice law was suspended on September 24, 2014, due to child support issues that he resolved by October 7, 2014, but due to logistical aspects of the process, the State Bar of California did not restore his license to an active status until October 23, 2014. In the meantime, he filed the second amended complaint on September 30, 2014.
On December 1, 2014, five defendants, Michael Boyd, Stephen Chilcott, Danesha Nichols, Cindy Oropeza, and Brent Seifert (the individual defendants) filed a special motion to strike the first four causes of action in the second amended complaint as a strategic lawsuit against public participation (SLAPP) suit (hereafter referred to as the anti-SLAPP motion). (Code Civ. Proc., § 425.16.) Stein, then unaware that plaintiff had fired him, filed an opposition to the anti-SLAPP motion on plaintiff's behalf. Plaintiff did fire Stein, proceeded in pro. per., and requested an extension of time to file his own opposition. Plaintiff filed his opposition late and exceeded the page limit. Nevertheless, the trial court considered the entirety of plaintiff's opposition and granted his request to disregard the opposition filed by Stein.
On December 17, 2014, Stein filed an ex parte application for relief from the potential defective filing of the second amended complaint. Stein explained to the court that his license had been temporarily suspended because he had mistakenly paid the wrong amount of child support for two or three months, a mistake that was quickly rectified once he learned of it. The trial court granted Stein's application and ruled that the second amended complaint filed on September 30, 2014, "is deemed validly filed."
In ruling on the individual defendants' anti-SLAPP motion, the trial court followed the requisite two-step process. First, the court examined the individual defendants' showing whether their acts were taken in furtherance of their constitutional rights of petition or free speech in connection with a public issue. The court found the individual defendants made a prima facie showing. The individual defendants' speech, the court ruled, was "made in connection with the processing, investigation, hearing and deciding the workplace complaints filed by Plaintiff and others pursuant to University policies." Second, the court found that plaintiff did not sustain his burden of showing a likelihood of prevailing on each of the elements of the four causes of action as well as defeating the individual defendants' affirmative defenses. The court, therefore, granted the individual defendants' anti-SLAPP motion.
Plaintiff appeals.
DISCUSSION
I
The Allegations
Plaintiff believes that his employer, defense counsel, the trial judge, and even his own lawyer, are corrupt and colluded to destroy his life. These allegations, not the merits of the anti-SLAPP motion, are at the heart of plaintiff's appeal. He writes: "There is no need for Waszczuk to base this appeal on the merit of the case which is important and Clerk Transcript is speaking for itself, if the whole legal process in this case was corrupted by the Defendants' attorney, Michael Pott, and Waszczuk's attorney, Douglas Stein misconduct, and their actions against Waszczuk were approved by the Court on September 22, 2014, and December 17, 2014."
There is nothing we can decide in this appeal or write in this opinion that will disabuse plaintiff of this fiercely held belief. He fails to understand that these very serious allegations are not before us on appeal of the anti-SLAPP motion. We will explain for his benefit what the record discloses to us—the utter absence of any evidence to support even a colorable claim of misconduct by any of the lawyers or judicial officers in this case. We will also briefly describe the procedural context in which the allegations are made and the futility of pursuing his corruption theory against these individual defendants. Despite the ferocity of plaintiff's feelings to the contrary, the fact that the second amended complaint did not contain what he hoped it would does not translate into reversible error and the fact that his lawyer and defense counsel engaged in an interactive process to avoid an unnecessary demurrer does not translate into corruption.
Let us begin with plaintiff's focus on the second amended complaint. As best we can decipher, his objection is twofold: (1) He is troubled that Stein did not pursue his theories that the University breached the settlement agreement and failed to follow internal policies by not providing him annual performance reviews for two years, and (2) he accuses the trial court of improperly validating the filing when Stein's license had been temporarily suspended.
Both objections are irrelevant to the individual defendants' anti-SLAPP motion, which sought to strike only four of the eight causes of action stated in the second amended complaint. Whether or not Stein would have expanded the second amended complaint to include additional causes of action has no bearing on whether the four causes of action were properly stricken. In any event, we are baffled by plaintiff's insistence that Stein refused to include a cause of action for breach of the settlement agreement is belied by the language of the sixth cause of action for breach of a written contract which appears to embody that very claim.
Plaintiff fails to cite any authority to support his claim that the trial court improperly validated the filing of the second amended complaint. The claim lacks both legal authority and evidentiary support in the record. Rather, Stein was forthright in his disclosure to the court. When he filed the second amended complaint he was unaware that his status with the State Bar had changed. The reason for his very brief suspension was unrelated to his competency or ethics in the practice of law. Rather, as Stein explained, he made an inadvertent error on the amount he paid in child support for two or three months. His license to practice was reinstated within about two weeks of his discovery of the suspension. On these facts, there is not the slightest hint of impropriety. To the contrary, Stein was diligent and transparent—making an ex parte application to assure the integrity of the document he inadvertently filed during the briefest of suspensions for a minor transgression unrelated to his professional performance. He should be commended, not chastised, for his fervent representation of plaintiff's interests.
Yet plaintiff asserts that defense counsel colluded with Stein to file a second amended complaint designed to rob him of meritorious claims. He also contends that Stein bowed to defense counsel's untoward pressure to amend the complaint and subjected his pleadings to the anti-SLAPP motion. He adds the naked allegation that the trial court acted improperly as well because the trial judge had known defense counsel for a number of years. Plaintiff's allegations are without evidentiary support.
The record discloses a cordial, thorough, and appropriate exchange between two lawyers engaged in a meet and confer process designed to avoid an unnecessary demurrer. The thoughtful letters exchanged by counsel described the legal issues presented by the first amended complaint and the authorities upon which they relied to support their positions. Stein relented on a few minor issues, but held steadfast as to the viability of his theories. Plaintiff's sheer speculation about the lawyers' motives is totally unsubstantiated; indeed, the record belies his accusations.
In summary, we conclude plaintiff's accusations of misconduct, corruption, and collusion between the lawyers and the trial court are unsubstantiated and unfounded. But even more importantly, they are irrelevant to the sole issue properly before us on appeal—whether the trial court erred by granting the five individual defendants' anti-SLAPP motion to strike four of the causes of action alleged against them. We turn, therefore, to the only relevant issue presented.
II
The Merits
The anti-SLAPP statute provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Code Civ. Proc., § 425.16, subd. (b)(1).) We review an order granting an anti-SLAPP motion de novo. (Daniel v. Wayans (2017) 8 Cal.App.5th 367, 379.)
As explained above, the trial court engages in a two-step process in determining whether to grant an anti-SLAPP motion. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.) In this case, the trial court found the individual defendants made a prima facie showing to satisfy the first prong and plaintiff did not challenge this finding in his opening brief. Belatedly in reply, he contends that the defendants did not "show any record or evidence that the Defendants Nichols, Chilcott, Boyd, Seifert, and Oropeza, who brought the anti-SLAPP motion to strike Waszczuk's first four causes of action, were made in connection with the processing, investigation, hearing, and deciding of the workplace complaints filed by Waszczuk."
In short, the court acknowledged that University policies and procedures have the force and effect of a state statute (Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 165); statutory procedures qualify as official proceedings authorized by law as contemplated by Code of Civil Procedure section 425.16 (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1399 (Vergos)); the constitutional right to petition includes the act of seeking administrative action (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115); and investigations and investigatory reports prepared in connection with an issue under consideration or review by an official body, such as a public entity's internal investigations, are protected activities under the anti-SLAPP statute (Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1383). Because the speech of the individual defendants who were subject to the anti-SLAPP motion was "made in connection with the processing, investigation, hearing and deciding the workplace complaints filed by Plaintiff and others pursuant to University policies," the court concluded the individual defendants satisfied their burden and shifted it to the plaintiff to demonstrate a likelihood of prevailing on the merits.
Plaintiff insists that Vergos, supra, 146 Cal.App.4th 1387, cited by the trial court, does not support the granting of the anti-SLAPP motion. We disagree. In Vergos, an employee of the University named the manager who denied his administrative grievance as a defendant in his sexual harassment lawsuit in her individual capacity. (Id. at p. 1390.) The manager filed a special motion to strike contending that her statements and communicative conduct in handling the employee's grievances were protected by Code of Civil Procedure section 425.16 because "they (1) were connected with an issue under review by an official proceeding authorized by law, and (2) furthered the right to petition of the plaintiff and similarly situated employees." (Vergos, at p. 1394.) We agreed and affirmed the judgment.
We pointed out that the manager's only conduct targeted in the complaint involved her hearing, processing, and deciding the employee's grievances. (Vergos, supra, 146 Cal.App.4th at p. 1396.) Similarly, here the trial court's finding parroted our conclusion in Vergos. And the court reviewed the allegations against each of the five individual defendants and reported their involvement as follows:
"The allegations of the SAC [second amended complaint] against Nichols attack her protected participation in the official investigations. The SAC specifically alleges Nichols' communications regarding the investigation and her investigative conclusions. Nichols was appointed to investigate Plaintiff's whistleblower complaints, and was also appointed to conduct an investigation into complaints of workplace violence filed by Putney and Daniliuc. All were protected petitioning activities.
"The allegations against Boyd and Chilcott are limited to their receipt of emails from Nichols relating to the investigations, and Chilcott's sending of an email relating to the investigation of Plaintiff. The emails are protected speech in connection with an investigation process.
"The allegations against Oropeza and Seifert are based upon their investigation into the emails plaintiff sent to Nichols in April 2012. Oropeza and Seifert conducted their investigation pursuant to the University's grievance protocol and reached conclusions documented in a report.
"Boyd acted as Complaint Resolution Officer ("CRO") at Step II of the University's PPSM 70 process, hearing and deciding Plaintiff's appeal of his termination."
In sum, each of the individual defendants, like the manager in Vergos, were involved in the investigation, hearing, processing, and/or deciding plaintiff's and his co-workers' grievances. We conclude, as in Vergos, their conduct was within the protective ambit of Code of Civil Procedure section 425.16. Thus we must review the trial court's resolution of the second step in the analysis—whether plaintiff demonstrated a likelihood of success on the merits.
Without citation to specific pages in the record or argument about the likelihood of success of each element of the four causes of action or even a response to the trial court's thorough analysis, plaintiff invites us to review his 443-page opposition to the anti-SLAPP motion and insists, again without analysis, that the evidence is "overwhelming." He falls miserably short of his duty on appeal to cite to the record, to present cogent argument, and to support his argument with applicable legal authority. In this vacuum, we turn to the trial court's statement of decision wherein the court provides a brief and apt rationale for finding plaintiff did not sustain his burden of showing a likelihood of prevailing.
Plaintiff's first cause of action for the intentional infliction of emotional distress fails because the tort requires a showing of outrageous conduct beyond the bounds of human decency. The court found "[w]hat plaintiff has alleged, and what his evidence in opposition appears to support, are complaints concerning personnel management by defendants. Pleading of personnel management activity is 'insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.' (Janken v. [GM Hughes Electronic (1996)] 46 Cal.App.4th [55,] 80.)" We agree with the trial court that none of the allegations against these individual defendants involved in the investigation and resolution of the grievances constitutes the type of outrageous conduct beyond the bounds of human decency necessary to prevail on a claim of the intentional infliction of emotional distress.
Plaintiff is unable to surmount the basic principle of law that an employee or former employee cannot sue a current or former supervisor or employee for interfering with his or her prospective economic advantage by inducing the employer to terminate the plaintiff's employment. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 24; Shepperd v. Freeman (1998) 67 Cal.App.4th 339, 347.) On this basis, the trial court properly concluded plaintiff failed to provide any countervailing authority or analysis as to why the facts before the court show the likelihood of prevailing on his interference with prospective economic advantage cause of action.
Plaintiff's discrimination claim meets another definitive legal obstacle. Individual defendants cannot be sued for discrimination under the Fair Employment and Housing Act (FEHA), nor can they be sued for failing to prevent discrimination, retaliation, and harassment. (Reno v. Baird (1998) 18 Cal.4th 640, 663-664; Janken v. GM Hughes Electronic, supra, 46 Cal.App.4th at p. 63.) Plaintiff has not shown any likelihood of surmounting this obstacle.
After Reno v. Baird, supra, 18 Cal.4th 640 was decided "the California Legislature amended FEHA's harassment provision expressly holding individual employees liable for their harassment." (Scott v. Solano County Health & Soc. Orders Servs. Dep't (E.D. Cal. 2006) 459 F.Supp.2d 959, 966, citing Gov. Code, § 12940, subd. (j).) There is no harassment claim targeted by the individual defendants' anti-SLAPP motion.
Finally, the trial court found that plaintiff did not establish that the individual defendants' conduct was in retaliation for his whistleblowing. The court explained: "The mere fact that Nichols, Oropeza and Seifert conducted investigations and reached conclusions with which Plaintiff does not agree with does not establish their investigatory findings are an act of retaliation. Nor can Boyd's decision to deny Plaintiff's grievance at the Step II level of PPSM 70 review be deemed to be a retaliatory action. Finally, there is no allegation that Chilcott took any particular action against Plaintiff that could be deemed to be a retaliatory action." In the absence of any evidence or analysis provided by plaintiff, we have no basis for reaching a finding at odds with the trial court. Plaintiff has not shown a likelihood of prevailing on a whistleblower retaliation cause of action. (Gov. Code, § 8547.10.)
III
Plaintiff maintains he should have been allowed to amend his complaint for the third time. As support he cites cases involving demurrers, not special motions to strike a SLAPP. His authorities, therefore, are inapposite. The anti-SLAPP statute makes no provision for amending the complaint once the court finds the targeted conduct is protected speech. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.)
DISPOSITION
The judgment striking the four causes of action against defendants Nichols, Oropeza, Seifert, Boyd, and Chilcott is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
RAYE, P. J. We concur: NICHOLSON, J. ROBIE, J.