(SBN: 36603) GIRARDI KEESE - Deadline Hollywood...ALF CLAUSEN SUPERIOR COURT OF THE STATE OF...

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THOMAS V. GIRARDI, ESQ. (SBN: 36603)GIRARDI * KEESE1126 WILSHIRE BLVD.LOS ANGELES CALIFORNIA 90017TEL: (213) 977-0211 FAX: (213) 481-1554

EBBY S. BAKHTIAR, ESQ. (SBN: 215032)Livingston • Bakhtiar3435 WILSHIRE BLVD., SUITE 1669LOS ANGELES, CALIFORNIA 90010TEL: (213) 632-1550 FAX: (213) 632-3100

Attorneys for Plaintiff:ALF CLAUSEN

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ALF CLAUSEN, an Individual,

PLAINTIFF,

vs.

TWENTIETH CENTURY FOXTELEVISION, a Corporation headquartered inLos Angeles County; TWENTIETHCENTURY FOX FILM, a Corporationheadquartered in Los Angeles County;TWENTY-FIRST CENTURY FOX, INC., aCorporation headquartered in Los AngelesCounty; FOX MUSIC, INC., a Corporationheadquartered in Los Angeles County;GRACIE FILMS, a California Corporation;THE WALT DISNEY CO., a Corporationheadquartered in Los Angeles County; andDOES 1 to 150, Inclusive,

DEFENDANTS.

)))))))))))))))))))))

CASE No.: 19STCV27373

PLAINTIFF’S OPPOSITION TODEFENDANTS’ ANTI-SLAPPSPECIAL MOTION TO STRIKE;MEMORANDUM OF POINTS &AUTHORITIES IN SUPPORTTHEREOF; AND SUPPORTINGDECLARATIONS

[Filed Concurrently With Declarationsof Ebby S. Bakhtiar, Scott Clausen, AlfClausen and Birdie Bush; Plaintiff’sSeparate Volume of Exhibits; andPlaintiff’s Evidentiary Objections.]

Date : August 5, 2020Time : 10:00a.m.Dept. : 62Trial Date : TBD

[THE HON. JUDGE MICHAEL L. STERN, PRESIDING]

TO THIS HONORABLE COURT, DEFENDANTS AND TO THEIR RESPECTIVE

ATTORNEYS OF RECORD:

Plaintiff ALF CLAUSEN hereby submits this Opposition to Defendants’ anti-SLAPP Special

Motion to Strike for Summary Judgement or in the Alternative Summary Adjudication.

Defendants’ Motion must be denied pursuant to the following grounds:

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ ANTI-SLAPP MOTION

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PLAINTIFF'S OPPOSITION TO DBFENDANTS' ANTI-SLAPP MOTION

Plaintiff was a W-2 Employee, which gives rise to a rebuttable

presurnption that Defendants were his employer (Cal. Govt. Code $

12928 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798,826);

Plaintiffs termination does not bear a sufficiently substantial

relationship to Defendants' exercise of any rights protected by the

anti-SLAPP statute (Wilsonv. C.N.N.,Inc. (2019) 7 Cal.5th 871,894);

Plaintiff s job neither bestowed upon him the ultimate authority to

determine Defendants' speech nor did it afford him the ability to

speak on Defendants' behalf as required by the anti-SLAPP statute

(Wilson v. C.N.N., Inc. (2019)7 Cal.5th 871,896); and

Plaintiff can easily demonstrate that his causes of action against

Defendants all have minimal merits.

Plaintiff s Opposition to Defendants' anti-SLAPP Motion is based upon the concurrently

filed Memorandum of Points & Authorities; the accompanying Declarations of Ebby S. Bakhtiar,

Scott Clausen, Alf Clausen and Roberta "Birdie" Bush; Plaintiff s Separate Volume of Exhibits,

Plaintiff s Evidentiary Objections; and all other matters that may be judicially noticed as well as

upon the entirety of the recoLds, files and pleadings in this case and upon all such other and further

evidence as may be presented at the hearing for said the Motion.

Crn nn or er KprsgANo

KHTIAR

ByEBBY S. BAKHTIAR,ATTORNEY FORALF CLAUS

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TABLE OF CONTENTS PAGE

I. INTRODUCTION :................................01

II. STATEMENT OF RELEVANT FACTS :................................02

III. LEGAL ARGUMENTS :................................07

A. DEFENDANTS HAVE NOT MET THEIR INITIALBURDEN OF SHOWING THAT THE ADVERSE ACT WAS A SLAPP–PROTECTED ACTIVITY. :................................07

B. PLAINTIFF BURDEN AT THE SECOND STAGE OF THE ANALYSIS IS LOW. :................................10

1. THE TIMING OF PLAINTIFF’S TERMINATIONESTABLISHES THE MINIMAL MERIT OF HIS DISABILITY DISCRIMINATION, RETALIATION, WRONGFUL DISCHARGE AND FAILURE TO ACCOMMODATE CLAIMS. :................................11

2. DEFENDANTS’ LIES ABOUT THE REASON FOR PLAINTIFF’S TERMINATION ESTABLISH THE MINIMAL MERIT OF HIS DISABILITY DISCRIMINATION, RETALIATION, WRONGFUL DISCHARGE AND FAILURE TO ACCOMMODATE CLAIMS. :................................14

3. DEFENDANTS’ LIES ABOUT THE REASON FORPLAINTIFF’S TERMINATION ESTABLISH THE MINIMAL MERIT OF HIS AGE DISCRIMINATION CLAIMS. :................................17

4. THE CONTINUING VIOLATION DOCTRINE WILL SAVE ANY FEHA CLAIM THAT MIGHT BE UNTIMELY. :................................19

5. PLAINTIFF’S REMAINING CAUSES OF ACTION AREDERIVATIVE OF HIS FEHA CLAIMS AND SURVIVE FOR THE SAME REASONS. :................................21

IV. CONCLUSION :................................21

i.PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

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TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT DECISIONS

TITLE PAGE

Price Waterhouse v. Hopkins (1989) 490 U.S. 228 :............................................18

St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502 :............................................15

NINTH CIRCUIT COURT OF APPEAL DECISION

TITLE PAGE

Coszalter v. City of Salem, 320 F.3d 968, (9th Cir. 2003) :............................................13

Flores v. City of Westminster, 873 F.3d 739, (9th Cir. 2017) :............................................13

Passantino v. J&J Consumer Prod., 212 F.3d 493, (9th Cir.2000) :............................................13

Ray v. Henderson, 217 F.3d 1234, (9th Cir.2000) :............................................13

Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, (9th Cir.2003) :............................................13

CALIFORNIA SUPREME COURT DECISIONS

TITLE PAGE

FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 :............................................09

Freeman v. Sup.Ct. (1955) 44 Cal.2d 533 :............................................14

Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083 :............................................11

Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 :....................................11, 13

Jeffra v. Cal. State Lottery (2019) 39 Cal.App.5th 471 :..............................02, 10, 21

Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 :............................................02

Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 :..............................03, 19, 20

ii.PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

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TITLE PAGE

Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260 :............................................02

Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931 :....................................02, 10

Wilson v. C.N.N., Inc. (2019) 7 Cal.5th 871 :..................02, 07, 08, 09, 10

Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 :..............................11, 15, 19

CALIFORNIA APPELLATE COURT DECISIONS

TITLE PAGE

A.M. v. Albertsons (2009) 178 Cal.App.4th 455 :....................................12, 20

Begnal v. Canfield & Assoc., Inc. (2000) 78 Cal.App.4th 66 :............................................19

Brundage v. Hahn (1997) 57 Cal.App.4th 228 :............................................11

Cheal v. El Camino Hosp. (2014) 223 Cal.App.4th 736 :............................................18

Cloud v. Casey (1999) 76 Cal.App.4th 895 :............................................14

Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142 :............................................13

Davis v. Inter’l. Brotherhood of Elec. Workers (1971) 16 Cal.App.3d 686 :............................................14

Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590 :............................................13

Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467 :............................................13

Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34 :....................................11, 12

George v. Cal. Unemp. Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475 :............................................13

Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187 :............................................11

Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779 :............................................21

iii.PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

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TITLE PAGE

Hunter v. CBS (2013) 221 Cal.App.4th 1510 :............................................09

Jensen v. Wells Fargo (2000) 85 Cal.App.4th 245 :............................................11

Mamoui v. Trendwest Resort (2008) 165 Cal.App.4th 686 :....................................01, 15

Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174 :............................................03

McRae v. Dept. of Corrections (2006) 142 Cal.App.4th 377 :............................................13

Moore v. Regents of U.C. (2016) 248 Cal.App.4th 216 :............................................14

Morgan v. U.C. Regents (2000) 88 Cal.App.4th 52 :....................................13, 19

Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935 :....................................12, 20

Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028 :............................................13

Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297 :....................................17, 18

Schaffer v. San Francisco (2008) 168 Cal.App.4th 992 :............................................02

Soria v. Univision Radio (2016) 5 Cal.App.5th 570 :........................12, 14, 15, 20

Steele v. YOPB (2008) 162 Cal.App.4th 1241 :............................................12

Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096 :............................................09

CALIFORNIA STATUTES & REGULATIONSTITLE PAGE

Cal. Civil Code § 2332 :............................................14

Cal. Govt. Code § 12926(m)(1)(B)(ii) :............................................11

Cal. Govt. Code § 12928 :............................................03

Cal. Govt. Code § 12940(a) :............................................17

iv.PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

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TITLE PAGE

Cal. Govt. Code § 12940(m) :............................................12

Cal. Govt. Code § 12940(m)(2) :............................................12

Cal. Govt. Code § 12941 :............................................17

2 C.C.R. § 11065(l)(3) :............................................11

2 C.C.R. § 11068(a) :....................................12, 20

v.PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

At the time of his termination, Alf Clausen had been a musician for nearly 60 years—50 of which

were spent as a composer in the film and television industries. During the last 27 years of his career, Mr.

Clausen was the composer for The Simpsons cartoon series, where he scored numerous episodes,

spanning every possible style of music ranging from classical to rap. (A.Clausen Decl. ¶¶ 6, 44-45)

Recognized as one of the most accomplished, prolific and respected composers in the industry, Mr.

Clausen’s work on The Simpsons garnered a record 23 Emmy nominations, two Emmy wins, five Annie

awards and other honors. Not only was Mr. Clausen never criticized by any of the Defendants at any time

for anything, Matt Selman—who now swears under penalty of perjury that Mr. Clausen had routinely

failed to fulfill “[his] and others’ creative vision”—had this to say in December 2016:

(Exh. 6)

The above email is just the tip of the proverbial mountain of evidence showing that the alleged reasons

for Mr. Clausen’s termination are nothing but pretexts based on demonstrable lies.1 This poses a problem

for Defendants because “evidence that the employer’s claimed reason is false ... will tend to suggest that

the employer seeks to conceal the real reason for its actions, and this in turn may support an inference

that the real reason was unlawful.” (Mamoui v. Trendwest Resort (2008) 165 Cal.App.4th 686, 715.)

(Emphasis added.) When the foregoing principle is paired with the timing of Mr. Clausen’s

termination—a month after telling FOX he had Parkinson’s disease—the truth begins to emerge.

1 While Defendants contend otherwise, Mr. Clausen was not an independent contractor, but a W-2employee of Twentieth Century Fox (“FOX”) (A.Clausen Decl. ¶¶ 11-12; Exh. 4); FOX’S own recordsand emails prove that it knew and allowed Mr. Clausen to regularly delegate the composition of music toother members of his team (A.Clausen Decl. ¶¶ 24-26, 46-63; S.Clausen ¶¶ 8-9, 16-18, 25-37; Exhs. 1-3); the producers also knew the music for each episode was “mocked-up” using computer software so thatit could be reviewed and modified days before being recorded with an orchestra (A.Clausen Decl. ¶¶ 29-31; S.Clausen Decl. ¶¶ 16-18, 51-53; Exh. 3, pp. 8, 14-17, 21; Exh. 5, pp. 1, 3, 6, 9-17); and, not onlydid Mr. Clausen have nothing to do with the decision to use an orchestra, he was amply able to create“synth” music of all kinds, including rap or hip hop, just as he had done on countless occasions in thepast. (A.Clausen Decl. ¶¶ 2-6, 36-45; Exh. 6; S.Clausen Decl. ¶¶ 38-39)

1.PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

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While Defendants loathe to admit it, the anti-SLAPP procedure was created “to insulate [defendants]

from having to litigate plainly unmeritorious lawsuits....” (Schaffer v. San Francisco (2008) 168

Cal.App.4th 992, 1004, italics in original, other emphasis added; Sweetwater Union High School Dist.

v. Gilbane Building Co. (2019) 6 Cal.5th 931, 945.) Therefore, to overcome Defendants’ Motion, all Mr.

Clausen need do is show that his “claims have at least ‘minimal merit.’” (Park v. Board of Trustees of

California State University (2017) 2 Cal.5th 1057, 1061.) (Emphasis added.)

As acknowledged by the California Supreme Court, “the bar sits lower, at a demonstration of

‘minimal merit.’” (Wilson v. C.N.N., Inc. (2019) 7 Cal.5th 871, 891.) Only causes of action that arise

directly from protected speech and lacks minimal merit are subject to being stricken under the SLAPP

statute. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278-279.)

However, through Defendants’ own documents and subterfuge of lies, Mr. Clausen can demonstrate

that the decision to terminate his lengthy employment was not only unrelated to the furtherance of free

speech, but motivated by discriminatory animus, in an effort to avoid having to accommodate an old,

ailing employee. Since the lenient anti-SLAPP standards now require this Court to accept Mr. Clausen’s

evidence as true and draw all reasonable inferences therefrom in his favor, Defendants’ Motion must be

denied. (Wilson, 7 Cal.5th at 891; Jeffra v. Cal. State Lottery (2019) 39 Cal.App.5th 471, 485.)

II.

STATEMENT OF RELEVANT FACTS

Plaintiff Alf Clausen, now 79, has been a musician for the vast majority of his life. (A.Clausen Decl.

¶ 2) Starting in or about 1967, Mr. Clausen moved to Los Angeles and began his career as a composer

and orchestrator in film and television. (A.Clausen Decl. ¶¶ 2-3)

Between 1967 and 1990, Mr. Clausen was the composer on a myriad of successful television shows,

including The Donny & Marie Show; The Mary Tyler Moore Hour; Fame; Little House on the Prairie;

Moonlighting; ALF; and many others. (A.Clausen Decl. ¶¶ 4-5) Mr. Clausen was also the composer of

many notable feature films, including Mr. Mom; Splash; Weird Science; Ferris Bueller’s Day Off; and

The Naked Gun, just to name a few. (A.Clausen Decl. ¶ 6) By 1990, Mr. Clausen was an established,

well-regarded, Emmy nominated composer who had developed an expansive musical palette,

encompassing all forms of music, ranging from classical to modern and more. (A.Clausen Decl. ¶ 6)


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In 1990, after the ALF television series ended, Mr. Clausen had a fateful meeting with Matt Groening,

the creator of The Simpsons series, during which he agreed to score one episode. (A.Clausen Decl. ¶¶

7-8) That episode marked the beginning of a 27 year career (as a W-2 employee) that ended abruptly and

unexpectedly in August 2017.2 (A.Clausen Decl. ¶¶ 7-9, 11-13, 78-81; Exh. 4)

During his time as the composer of The Simpsons, Mr. Clausen scored nearly all of the music for each

episode, spanning a wide spectrum of styles and genres from rock, R&B, rap/hip hop, electronic, disco,

country, big-band, choral, contemporary, etc. (A.Clausen Decl. ¶¶ 9, 44) As such, by 2017, Mr. Clausen

had amassed an extensive and comprehensive music library to draw from. (A.Clausen Decl. ¶¶ 9, 44)

As the composer for The Simpsons, Mr. Clausen won five Annie Awards; two Emmys in 1997 and

1998, both for Outstanding Individual Achievement in Music and Lyrics; and received an astounding

23 Emmy nominations. (A.Clausen Decl. ¶ 10) In 2011, after his 30th Emmy nomination, Mr. Clausen

was named the most-nominated composer in Emmy history. (A.Clausen Decl. ¶ 10)

While with the show, Mr. Clausen primarily reported to the producers, Al Jean and Matt Selman, as

well as Carol Farhat, the Vice President of Television Music Production & Administration at FOX.3

(A.Clausen Decl. ¶¶ 13-14, 15) Two weeks before an episode aired, its “showrunner,” either Al Jean or

Matt Selman, would meet with Mr. Clausen to give him very specific, detailed instructions as to every

substantive aspect of every piece of music (called a “cue”) that went into the episode, including how the

cue had to sound, the style of music, where in the episode the cue went, how the cue started and ended,

the subtext, the emotion the cue conveyed, etc. (A.Clausen Decl. ¶¶ 17-23, 29-31, 33-35; Bush Decl.

¶¶ 8-10; S.Clausen Decl. ¶ 7) Each episode could contain 30 or more cues. (A.Clausen Decl. ¶ 19)

2 While Defendants insist that he was an independent contractor, Mr. Clausen was actually a W-2employee of FOX. (A.Clausen Decl. ¶¶ 11-13; Exh. 4) Under California law, there exists “a rebuttablepresumption that ‘employer,’ as defined by [the FEHA,] includes any person or entity identified as theemployer on the employee’s Federal Form W 2 (Wage and Tax Statement)....” (Richards v. CH2M Hill,Inc. (2001) 26 Cal.4th 798, 826, internal quotes omitted; Cal. Govt. Code § 12928.)

3 Gracie Films co-produces The Simpsons with FOX, and Mr. Clausen was controlled by bothGracie and FOX. (A.Clausen Decl. ¶¶ 13-14) California law recognizes that “[w]here an employer sendsan employee to do work for another person, and both have the right to exercise certain powers of controlover the employee, that employee may be held to have two employers—his original or ‘general’ employerand a second, the ‘special’ employer.’” (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1183,internal quotes omitted.) Under such circumstances, the employee may look to either or both employersfor enforcement of rights under the FEHA. (Ibid, at 1184.) Regardless, since this Court denied Mr.Clausen’s request to open discovery, he is, at this early stage of the litigation, unable to fully explain thecomplete nature of the relationships between Gracie, FOX and the other Defendants herein.


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Thereafter, Mr. Clausen determined the time needed to score the episode by its deadline and would

divide the work between himself and his team. (A.Clausen Decl. ¶¶ 23-24) Since the score of an episode

had to be written within five to six days, Mr. Clausen routinely delegated the composition of some of the

music to his team, including his son Scott Clausen. (A.Clausen Decl. ¶¶ 18, 25-28, 46-63; S.Clausen

Decl. ¶¶ 9-14) As the composer, Mr. Clausen was responsible for overseeing the scoring of each episode,

not personally writing every piece of music that went into every episode. (A.Clausen Decl. ¶ 25)

It is undeniable that FOX knew Mr. Clausen delegated cues to his team, as evidenced by the “cue

sheets” it prepared for each episode.4 (A.Clausen Decl. ¶¶ 46-51; S.Clausen Decl. ¶¶ 25-31; Exhs. 1-2)

The cue sheets show that since at least 2009, hundreds of cues were composed or co-composed by other

members of Mr. Clausen’s team. (A.Clausen Decl. ¶¶ 49-63; S.Clausen Decl. ¶¶ 29-37; Exhs. 1-2)

Mr. Clausen had also engaged in numerous discussions with Al Jean, Matt Selman and Carol Farhat

about who, other than him, had composed or co-composed the cues of various episodes. (A.Clausen

Decl. ¶ 26) There are even emails dating back to 2008, showing that Al Jean, Matt Selman and Carol

Farhat knew Scott Clausen was composing cues. (S.Clausen Decl. ¶ 35; Exh. 3, pp. 1-4, 6-13, 17-27)

Moreover, every piece of music that went into an episode was written with computer software.

(A.Clausen Decl. ¶¶ 29-30; S.Clausen Decl. ¶¶ 16-18) The software generated a synthesized preview

of each cue called a “mockup.” (A.Clausen Decl. ¶ 29; S.Clausen Decl. ¶¶ 16-18) Mockups gave Mr.

Clausen the ability to make changes to any cue, days before the live recording session. (A.Clausen Decl.

¶¶ 29-30; S.Clausen Decl. ¶¶ 16-18) Matt Selman and Al Jean—even James Brooks on

occasion—regularly received mockups, which they were able to change before the recorded session.

(A.Clausen Decl. ¶¶ 30-31; S.Clausen Decl. ¶¶ 16-18, 51-53; Exh. 3, pp. 5-12, 14-21; Exh. 5, pp. 1,

3, 6, 9-17) The showrunners could also make changes in post-production. (A.Clausen Decl. ¶ 35)

Notably, mockups could have easily been refined for broadcast, had the producers wanted to go that

route. (A.Clausen Decl. ¶ 42) However, the creator and producers of the show, not Mr. Clausen, had

originally decided to use a live orchestra for the music. (A.Clausen Decl. ¶¶ 39, 43) In fact, in the early

1990s, the producers explicitly instructed Mr. Clausen to remove a synthesizer and an electric piano that

he had incorporated into the orchestra. (A.Clausen Decl. ¶¶ 40-43)

4 Cue sheets are documents listing every cue in an episode and the cue’s composer or co-composers. (A.Clausen Decl. ¶¶ 46-51; S.Clausen Decl. ¶¶ 25-31; Exhs. 1-2) Cue sheets are importantsince they are used to calculate royalties. (A.Clausen Decl. ¶¶ 46-48, 50; S.Clausen Decl. ¶ 26)


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As a result, Mr. Clausen only used synthesizers when a scene or episode required it, or when the

source music that was being parodied contained it. (A.Clausen Decl. ¶ 41) For instance, in 2007, Mr.

Clausen composed a parody episode of the television show 24, which contained only synth music.

(A.Clausen Decl. ¶ 41; S.Clausen Decl. ¶ 39) Therefore, Mr. Clausen never expressed any opposition

to synth music and was fully capable of creating it if the show’s hierarchy wanted it. (A.Clausen Decl.

¶¶ 42-43; S.Clausen Decl. ¶ 38)

By the same token, Mr. Clausen was equally capable of creating hip hop, rap and any other style of

music. (A.Clausen Decl. ¶¶ 6, 36, 44) Mr. Clausen had composed numerous rap and hip hop cues,

including the “Homerpalooza” episode of season 7, where the producers had him compose the hip hop

song “Insane in the Membrane,” by the rap group Cypress Hill, using an orchestra. (A.Clausen Decl. ¶

45) In sum, after 50 years of composing music for films and television, there was no style of music that

was foreign to Mr. Clausen or that he was uncomfortable creating. (A.Clausen Decl. ¶¶ 6, 36, 44)

Indeed, Mr. Clausen’s awards and accolades underscore his competence, as does his 27 years as the

composer of The Simpsons—during which time no one ever criticized or complained about his work

performance or capabilities. (A.Clausen Decl. ¶¶ 10, 36-37; S.Clausen Decl. ¶ 24; Bush Decl. ¶ 13)

Even Matt Selman, who now attests to something different, expressed feeling honored to be part of Mr.

Clausen’s “orchestration entourage” in December 2016. (A.Clausen Decl. ¶¶ 37-38; Exh. 6)

Additionally, as the show’s composer, Mr. Clausen managed a budget and a team of music

professionals. (A.Clausen Decl. ¶¶ 14-15) Mr. Clausen reported to Carol Farhat, who not only

supervised the scoring of The Simpsons, but was in charge of overseeing all budgetary matters relating

to the music of the show. (A.Clausen Decl. ¶¶ 14, 16) Mr. Clausen routinely worked with Ms. Farhat

to meet all budgetary constraints and was never once criticized or given any negative feedback—by her

or anyone—regarding the budget or the cost of the show’s music. (A.Clausen Decl. ¶¶ 16, 36, 80-81)

Likewise, Mr. Clausen was never told by anyone that the music budget was too high or that FOX wanted

to transition away from an orchestra and into synth music in order to cut costs. (A.Clausen Decl. ¶ 79)

In 2013, Mr. Clausen was diagnosed with Parkinson’s disease. (A.Clausen Decl. ¶¶ 64-65) Although

he tried keeping his condition a secret, by the start of the 2016/2017 season, some of his symptoms could

no longer be concealed. (A.Clausen Decl. ¶¶ 66-69; S.Clausen ¶¶ 10, 40-47)


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In fact, by or about the prior season, between fall 2015 and May 2016,5 Mr. Clausen had begun

exhibiting overt signs of his illness. (S.Clausen ¶¶ 41-42) This included tremors in his hands and an

increasingly slower, guarded gait when walking. (S.Clausen ¶ 43; Bush Decl. ¶¶ 14-16)

Mr. Clausen’s personal assistant, Roberta “Birdie” Bush, also noticed the unmistakable changes in

his physical presentation, including a slow, guarded stride and intermittent tremors. (Bush Decl. ¶¶ 14-

16) On occasion, Mr. Clausen would was also observed stopping in his tracks—mid stride—as though

his legs had stopped cooperating with him. (Bush Decl. ¶ 17) On other occasions, his arm appeared to

stiffen and rise in the air outside of his control. (Bush Decl. ¶ 16)

Starting in or about 2015, as Mr. Clausen started exhibiting symptoms, Scott Clausen perceived a

general sense of concern growing among colleagues and co-workers. (S.Clausen ¶ 46) By 2016, co-

workers were asking Scott Clausen if his father was “okay” and by the start of the 2016/2017 season, in

August 2016, Mr. Clausen was walking with a special cane and taking unusual rest breaks during some

of the recording sessions. (A.Clausen Decl. ¶ 68; S.Clausen ¶¶ 43, 45; Bush Decl. ¶ 15)

Significantly, in or about or about September 2016, Carol Farhat asked Scott Clausen to work on a

special 3D virtual reality project that Google was co-producing for the show, called the “VR Couch Gag.”

(S.Clausen ¶ 47) However, because the cost of this special project exceeded the season’s allotted budget,

Farhat demanded that Scott Clausen perform the work for a fraction of his normal rate. (S.Clausen ¶ 48)

When Scott protested, Farhat threatened him by saying: “with what’s going on with your dad, now’s not

the time to piss off the producers....” or words to that effect. (S.Clausen ¶ 48) Scott Clausen interpreted

Farhat’s comments to be in reference to the rumors about his father’s illness. (S.Clausen ¶¶ 48-50)

On or about December 9, 2016, Mr. Clausen was at a live recording session attended by Matt Selman.

(Bush Decl. ¶ 18) During a break, Mr. Clausen rose from his seat in such a manner that Selman asked:

“you doing okay Alf?” or words to that effect. (Bush Decl. ¶ 18) Mr. Clausen candidly replied: “I’m

doing pretty well given the situation; I’ve been diagnosed with Parkinson’s and it’s just slowing my legs

down.” (Bush Decl. ¶ 18; A.Clausen Decl. ¶¶ 71-72; Exh. 6) The following day, Selman emailed Mr.

Clausen about his Parkinson’s disease and in response, Mr. Clausen told Selman that he was also

experiencing excess fatigue associated with his condition. (A.Clausen Decl. ¶¶ 71-72; Exh. 6)

5 The television season began every August and ended in or about May of the following year.(S.Clausen Decl. ¶ 10; Bush Decl. ¶ 21)


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On June 30, 2017, over a month after the 2016/2017 season had ended, Mr. Clausen was scheduled

to oversee the recording of the vocals for six episodes that were going to air during the 2017/2018 season.

(A.Clausen Decl. ¶¶ 73-74; Exh 7, pp. 1-7) The day before the recording session, on June 29, 2017, Mr.

Clausen scheduled a meeting with Carol Farhat to confidentially discuss “something of significant

importance” that was unrelated to the show. (A.Clausen Decl. ¶¶ 75-76; Exh 7, p. 8)

On June 30, 2017, Mr. Clausen met with Farhat in her office and discussed his diagnosis with her.6

(A.Clausen Decl. ¶ 77; Bush Decl. ¶¶ 19-20) Right after, Mr. Clausen told Birdie Bush about his

disclosure to Farhat before starting the recording session. (Bush Decl. ¶¶ 19-20)

Following his meeting with Farhat, Mr. Clausen expected to continue being the composer of the show.

(A.Clausen Decl. ¶ 77) While the physical manifestations of his illness were starting to show, Mr.

Clausen was still able to perform his job and intended to stay. (A.Clausen Decl. ¶¶ 69-70, 75, 82, 84)

However, on August 16, 2017, Richard Sakai of Gracie Films, notified Mr. Clausen that his

employment was terminated because FOX had decided to go in a “different direction.” (A.Clausen Decl.

¶¶ 13, 78; S.Clausen Decl. ¶¶ 56-59; Bush Decl. ¶ 22) Mr. Clausen’s termination came just over a

month after he disclosed his diagnosis to Farhat. Worse yet, the show’s direction never changed.7

III.

LEGAL ARGUMENTS

A. DEFENDANTS HAVE NOT MET THEIR INITIAL BURDEN OF SHOWING

THAT THE ADVERSE ACT WAS A SLAPP–PROTECTED ACTIVITY.

To meet the first of their two-step SLAPP burden, Defendants “must show that the complained-of

adverse action, in and of itself, is an act in furtherance of its speech or petitioning rights.” (Wilson, 7

Cal.5th at 890.) (Emphasis added.) The nexus between the adverse action and the protected activity

cannot be tangential. Rather, it must “bear[] a sufficiently substantial relationship to the organization’s

ability to speak....” (Ibid, at 894.) (Emphasis added) As the California Supreme Court in Wilson observed,

“[c]ases that fit that description are the exception, not the rule.” (Id., at 890.)

6 While Mr. Clausen did need some minor accommodations for his condition, after learning abouthis condition, Defendants neither engaged Mr. Clausen in the timely, good faith interactive process asrequired by the FEHA nor did they ever offer him any accommodations. (A.Clausen Decl. ¶¶ 82-83)

7 Mr. Clausen has watched The Simpsons since his termination and despite Sakai’s representation,the show’s music is still the exact same style and type as before. (A.Clausen Decl. ¶ 84)


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Nonetheless, in an effort to shoehorn Mr. Clausen’s action into meeting the limited scope of their

initial burden, Defendants mischaracterize his claims as being predicated upon “the show’s use of

Bleeding Fingers.” (See Motion, p. 14:21.) This is wrong. The core predicate for Mr. Clausen’s damages

is the termination of his employment. (See FAC at Exh. 8, ¶¶ 25-28)

In Wilson, a journalist who wrote and produced stories of public importance was fired by CNN after

an editor concluded that parts of an article he had drafted for publication were plagiarized. (Wilson, 7

Cal.5th at 882.) The plaintiff sued under the FEHA and CNN filed an anti-SLAPP Motion, arguing—as

Defendants do here—that all of its hiring and firing decisions were protected given the connection

between its news business and free speech. (Ibid, at 894.)

However, the California Supreme Court rejected this proposition as untenably broad. (Id., at 894-895

and 896-897.) While Wilson ultimately found that CNN’s interest in combating plagiarism to preserve

the integrity of its reputation as a news agency was a protected activity for the purposes of its initial

SLAPP burden, it emphasized that “[n]ot every staffing decision a news organization makes—even with

respect to those who write, edit, or otherwise produce content—enjoys constitutional protection.” (Id.,

at 896.) (Emphasis added.)

Wilson then went on to narrow the ambit of SLAPP-protected employment decisions made by media

organizations to just those involving the hiring or firing of “on-air” employees who speak “on behalf of”

the organization, as well as employees “who [are] vested with ultimate authority to determine a news

organization’s message....” (Id., at 896.) (Emphasis added.) Wilson reasoned that these employees

“might well have a substantial effect on the organization’s ability to speak on public issues, which is the

anti-SLAPP statute’s concern.” (Id.) (Emphasis added.)

Wilson further explained that:

“[l]awsuits directed at influencing the selection of

individuals who wield that type of ultimate authority could

chill participation in the discussion of public issues, as

surely as suits targeting the act of speaking itself. But not

so with other employees in a newsroom who may

contribute to, but lack ultimate say over, their

employer’s speech.”

(Id.) (Emphasis added.) This is a critical distinction that Defendants overlook.


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Wilson thus embraces the rationale underlying Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096

and Hunter v. CBS (2013) 221 Cal.App.4th 1510, but only because the employees at issue had sufficient

authority to either speak on behalf of their employer, or substantially effect their employer’s speech.8

While Defendants ignore the limitations imposed by Wilson, they are undeniable and must be applied.

Under the narrow substantial effect standard promulgated by Wilson, the termination of Mr. Clausen

can not be considered a SLAPP-protected activity. Like the plaintiff in Wilson, Mr. Clausen merely

contributed to Defendants’ speech, but lacked the ultimate authority to determine the speech.

By contrast, all of the decision-making authority in connection with every aspect of an episode’s

music was held by the episode’s showrunner. (A.Clausen Decl. ¶¶ 17-23, 29-31, 33-35; Bush Decl. ¶¶

8-10; S.Clausen Decl. ¶ 7) The showrunner dictated to Mr. Clausen exactly what the music had to sound

like, where it began and ended, how it began and ended, what style it had to be, its emotion, etc.

(A.Clausen Decl. ¶¶ 17-23, 29-31, 33-35; Bush Decl. ¶¶ 8-10; S.Clausen Decl. ¶ 7; see Jean Decl. ¶¶

3-4; Selman Decl. ¶¶ 14) The showrunner received mockups of the music for approval days before the

recording session and would also make changes to the music during the post production “dub” session,

after it had been recorded. (A.Clausen Decl. ¶¶ 29-31, 35; S.Clausen Decl. ¶¶ 16-18, 51-53; Exh. 3,

pp. 8, 14-17, 21; Exh. 5, pp. 1, 3, 6, 9-17; see also Ledesma Decl. ¶ 5; Selman Decl. ¶¶ 16-18)

Furthermore, unlike the plaintiffs in Hunter and Symmonds, Mr. Clausen was neither an on-air

personality nor a live musician in a rock band. There is also no evidence that The Simpsons’ popularity

is attributable to its music the way that Eddie Money’s popularity is. Nor is there any evidence that

viewers watch The Simpsons for the content of its music—again, like Eddie Money’s fans do. Simply

said, the music accompanying The Simpsons is just “too tenuously tethered to the issues of public interest

... and thus too remotely connected to the public conversation about those issues to merit protection ....”

(FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 144-145.)

8 In Hunter, the plaintiff sued for age and gender discrimination after an attractive young womanwas hired to fill a vacant weather anchor position instead of him. Hunter held that the choice of selectingan on-air weather anchor was akin to a casting decision, made in the furtherance of the organization’sexercise of free speech. (Hunter, 221 Cal.App.4th at 1527; Wilson, 7 Cal.5th at 896.) Similarly, inSymmonds, Eddie Money’s former drummer sued him for FEHA violations and wrongful termination.Eddie Money filed an anti-SLAPP Motion and presented evidence demonstrating that he was apopular musician with hit songs and millions of records sold. (Symmonds, 31 Cal.App.5th 1096, at1101.) The Symmonds court concluded that a singer’s selection of live musicians who play with himon stage—akin to the casting decision in Hunter—was protected speech. (Ibid, at 1106.)


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B. PLAINTIFF’S BURDEN AT THE SECOND STAGE OF THE ANALYSIS IS LOW.

“In the relatively unusual case in which the discrimination or retaliation defendant does meet its

first-step burden of showing that its challenged actions qualify as protected activity, the burden shifts to

the plaintiff.” (Wilson, 7 Cal.5th 891.) (Emphasis added.) However, “the plaintiff’s second-step burden

is a limited one.” (Ibid.) “The plaintiff need not prove her case to the court [Citation]; the bar sits lower,

at a demonstration of ‘minimal merit’ [Citation].” (Id.) (Emphasis added.)

“At this stage, ‘[t]he court does not weigh evidence or resolve conflicting factual claims.’” (Id.,

quoting Sweetwater, 6 Cal.5th at 940.) Instead, the court “accepts the plaintiff’s evidence as true, and

evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.’

[Citation].” (Id.) (Emphasis added.) Where a plaintiff fails to directly refute a defendant’s evidence, the

court “cannot ignore reasonable inferences that might be drawn from the circumstances plaintiff did

show, particularly at this stage of the case.” (Jeffra, 39 Cal.App.5th at 485.) (Emphasis added.)

Notably, the evidentiary burden is also reduced, as the court must consider any declaration submitted

in opposition to the anti-SLAPP Motion. (Sweetwater, 6 Cal.5th at 949.) (Emphasis added.) In this

regard, “the written statements themselves need not be admissible at trial, but it must be reasonably

possible that the facts asserted in those statements can be established by admissible evidence at trial.”

(Ibid, at 948, fn 12, italics in original.) Unless the evidence suffers from “the sort of evidentiary problem

a plaintiff will be incapable of curing by the time of trial[,]” all of a plaintiff’s opposing evidence is

required to be considered and accepted as true. (Id., at 948, internal quotes omitted.) (Emphasis added.)

Courts must therefore “remain mindful that the anti-SLAPP statute was adopted to end meritless suits

targeting protected speech, ‘not to abort potentially meritorious claims due to a lack of discovery.’

[Citation.]” (Wilson, 7 Cal.5th at 891.) (Emphasis added.) Accordingly, “[w]here a defendant relies on

motive evidence in support of an anti-SLAPP motion, a plaintiff's request for discovery concerning the

asserted motive may often present paradigmatic ‘good cause.’ [Citation]” (Ibid, at 891-892.) However,

where discovery has been denied, judicial scrutiny of the plaintiff’s evidence is relaxed, rendering the

standard even more forgiving than that on summary judgment.9 (See Jeffra, 39 Cal.App.5th at 485.)

9 This is especially important here, given this Court’s July 13, 2020 decision to deny Mr.Clausen’s Ex-Parte Application to continue the matter so that his Motion to Open Discovery could beconsidered. As such, greater deference and leniency must now be accorded to Mr. Clausen in assessingwhether he has met his burden in establishing minimal merit. (Jeffra, 39 Cal.App.5th at 485.)


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1. THE TIMING OF PLAINTIFF’S TERMINATION ESTABLISHES THE MINIMAL

MERIT OF HIS DISABILITY DISCRIMINATION, RETALIATION, WRONGFUL

DISCHARGE AND FAILURE TO ACCOMMODATE CLAIMS.

For discrimination, the plaintiff must show that he/she was a member of a protected class; was

performing the job competently; and suffered an adverse employment action such as termination, or other

circumstances suggesting a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,

355.) A plaintiff can establishes retaliation by showing that he/she was subjected to an adverse

employment action based on an unlawful reason—namely, engaging in a protected activity. (Yanowitz

v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) For wrongful discharge, the plaintiff must show that

the termination of his/her employment was in violation of public policy—e.g., discrimination or

retaliation in violation of the FEHA. (Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1089-1090.)

Unlike with discrimination and retaliation, a failure to accommodate cause of action does not require

proof that the employee’s disability resulted in an adverse employment action, since the failure to

accommodate is a violation of the statute in and of itself. (Jensen v. Wells Fargo (2000) 85 Cal.App.4th

245, 256.) A failure to accommodate cause of action thus only requires the plaintiff to show that he/she

suffered from a physical or mental condition that made it difficult to participate in at least one major life

activity;10 that he/she was able to perform the essential duties of the job, either with or without reasonable

accommodations; and the employer failed to reasonably accommodate the plaintiff’s known disability.

(Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236; Jensen, 85 Cal.App.4th at 254; Hernandez v.

Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.)

The “FEHA’s reference to a ‘known’ disability is read to mean a disability of which the employer has

become aware, whether because it is obvious, the employee has brought it to the employer’s attention,

it is based on the employer’s own perception–mistaken or not–of the existence of a disabling condition

or ... the employer has come upon information indicating the presence of a disability.” (Gelfo v. Lockheed

Martin (2006) 140 Cal.App.4th 34, 61, fn 21.) (Emphasis added.) This definition is intended to be

expansive in order to defeat any purposeful effort to avoid acquiring knowledge of a disability or

potential disability.

///

10 Cal. Govt. Code § 12926(m)(1)(B)(ii); 2 C.C.R. § 11065(l)(3).11.

PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

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Notably, since 2015, the FEHA has recognized requests for accommodations to be protected activities.

(Govt. Code § 12940(m)(2).) However, despite Defendants’ contrary view, Govt. Code § 12940(m) does

not require an employee to specifically request an accommodation as a predicate to being engaged in the

interactive process and accommodated. This is because a continuing affirmative duty to engage in the

interactive process and accommodate automatically arises once an employer knows of an employee’s

potential disabilities. (2 C.C.R. § 11068(a); Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th

935, 949-951; A.M. v. Albertsons (2009) 178 Cal.App.4th 455, 464; Soria v. Univision Radio (2016) 5

Cal.App.5th 570, 593 and 599.)

Therefore, “[a]n employee is not required to specifically invoke the protections of FEHA or speak any

‘magic words’ in order to effectively request an accommodation under the statute.” (Soria, 5 Cal.App.5th

at 599 citing to Prilliman, 53 Cal.App.4th at 954; see Gelfo, 140 Cal.App.4th at 62, fn. 22.) (Emphasis

added.) Imposing such a requirement upon an employee with a known disability, as Defendants suggest,

would only conflict with the employer’s affirmative duties under the FEHA.11 (2 C.C.R. § 11068(a);

Prilliman, 53 Cal.App.4th at 949-951; Soria, 5 Cal.App.5th at 599.)

Here, Mr. Clausen has alleged that Defendants knew about his disabilities, both from their own

observations and through his notification to Farhat. (Exh. 8, ¶¶ 14-16, 20) Mr. Clausen has further

alleged that soon after notifying Farhat about his condition, his 27 years of employment was terminated

in an effort to avoid having to furnish him with reasonable accommodations. (Exh. 8, ¶¶ 20-23, 25)

These facts are the benchmarks for Mr. Clausen’s action, since the “FEHA protects employees against

preemptive retaliation.” (Steele v. YOPB (2008) 162 Cal.App.4th 1241, 1255.) (Emphasis added.) It is

well recognized that an “‘[a]ction taken against an individual in anticipation of that person engaging in

protected [activities] is no less retaliatory than action taken after the fact.’ [Citation]” (Ibid, at 1254-

1255.) (Emphasis added.) This paradigm encompasses the avoidance of accommodations through the

termination of an employee the employer anticipates will require or request accommodations. (Id.)

11 In Soria, the plaintiff-employee never made a “request” for accommodations, but did informher supervisor that she had been diagnosed with a potentially cancerous tumor that her doctors wanted toremove, requiring the partial removal of her stomach and esophagus as well. (Soria, 5 Cal.App.5th at593.) Soria concluded that “[t]he only reasonable interpretation of this information, if the jury finds [theplaintiff’s] testimony credible, is that [the plaintiff] had a serious condition that would interfere with herability to work.” (Id.) Accordingly, Soria held that the information conveyed by the plaintiff wassufficient to trigger the employer’s obligations under the FEHA. (Id., at 593 and 599.)


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To prove his allegations, Mr. Clausen can rely on the temporal proximity of his termination. “That

an employer’s actions were caused by an employee’s engagement in protected activities may be inferred

from ‘proximity in time between the protected action and the allegedly retaliatory employment

decision.’[Citation.]” (Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir.2000).) (Emphasis added.) In other

words, the “[t]iming of events” can establish the necessary causal link needed to prove retaliation and

discrimination. (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153; McRae v. Dept. of

Corrections (2006) 142 Cal.App.4th 377, 388; Morgan v. U.C. Regents (2000) 88 Cal.App.4th 52, 69;

Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 479; Fisher v. San Pedro Peninsula Hosp.

(1989) 214 Cal.App.3d 590, 615.)

In Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, a prima facie case for

retaliation and discrimination was established by the termination of an employee a month after he

complained about his employer’s refusal to continue affording him the modified work schedule he needed

in order to care for his disabled child. (Ibid, at 1049.) In Passantino v. J&J Consumer Prod., 212 F.3d

493, (9th Cir.2000),12 the Ninth Circuit concluded that “evidence 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.” (Ibid, at 507.)

(Emphasis added.) Three years later, in Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, (9th

Cir.2003), the Ninth Circuit once again observed that the temporal proximity between an employee’s

protected activities and the adverse employment action “can provide strong evidence of retaliation.” (Ibid,

at 1069.) (Emphasis added.)

Significantly, the delay between the protected activity and the adverse act does not even have to be

short. (Flores v. City of Westminster, 873 F.3d 739, 750, fn 5, (9th Cir. 2017). In George v. Cal. Unemp.

Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, a delay of four month was described as “relatively close

timing,” from which supporting inferences could be drawn. (Ibid, at 1492.) (Emphasis added.) In

Coszalter v. City of Salem, 320 F.3d 968, (9th Cir. 2003), the Ninth Circuit declined to adopt “any

bright-line rule about the timing of retaliation” and instead held that, “[d]epending on the circumstances,

three to eight months is easily within a time range that can support an inference of retaliation.” (Ibid,

at 977-978.) (Emphasis added.)

12 “Because of the similarity between state and federal employment discrimination laws,California courts look to pertinent federal precedent when applying our own statutes.” (Guz, 24 Cal.4th at354.)


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The evidence here shows that Mr. Clausen’s physical symptoms were increasing and becoming more

noticeable. (A.Clausen Decl. ¶¶ 66-69, 71-72; S.Clausen ¶¶ 10, 40-50; Bush Decl. ¶¶ 14-16, 18)

Consequently, on June 30, 2017, Mr. Clausen confirmed his Parkinson’s diagnosis to Farhat, thereby

leaving no doubt as to his condition.13 (Soria, 5 Cal.App.5th at 593 and 599.) A month later, Mr.

Clausen’s employment was abruptly terminated despite his 27 years of stellar performance.

These facts give rise to a reasonable inference that soon after confirming his diagnosis, Defendants

perceived that Mr. Clausen’s physical state was only going to deteriorate, dictating his inevitable request

and need for reasonable accommodations.14 While Defendants contend that Mr. Clausen’s failure to

engage and failure to accommodate causes of action are time-barred, California law explicitly holds that

“a pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing

reasonable accommodation or engaging in the interactive process does not provide an employer a

reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Moore

v. Regents of U.C. (2016) 248 Cal.App.4th 216, 244.) (Emphasis added.)

2. DEFENDANTS’ LIES ABOUT THE REASON FOR PLAINTIFF’S TERMINATION

ESTABLISH THE MINIMAL MERIT OF HIS DISABILITY DISCRIMINATION,

RETALIATION, WRONGFUL DISCHARGE AND FAILURE TO

ACCOMMODATE CLAIMS.

Defendants’ unlawful motives are further highlighted by their efforts to escape liability through lies

and deceit. (Cloud v. Casey (1999) 76 Cal.App.4th 895, 911-912.) Defendants’ arguments all boil down

to a singular proposition: Mr. Clausen was fired for performance deficiencies. Defendants contend that

Mr. Clausen was not supposed to delegate the composition of music to his team; was allegedly unable

to capture the showrunners’ vision; and purportedly, was incompetent with regard to synth and rap music.

13 Where an agent has acquired knowledge which he or she had a duty to communicate to his orher principal, a conclusive presumption arises that the agent has performed that duty (Freeman v. Sup.Ct.(1955) 44 Cal.2d 533, 538.) California law has long held that, “[a]s against a principal, both principaland agent are deemed to have notice of whatever either has notice of....” (Davis v. Inter’l.Brotherhood of Elec. Workers (1971) 16 Cal.App.3d 686, 695; Civil Code § 2332.) (Emphasisadded.) Even if “the knowledge acquired by the agent was not actually communicated to the principal... [it] does not prevent operation of the rule ... [since] [t]he knowledge is, in law, imputed to theprinciple.” (Id.) (Emphasis added.)

14 It is widely known that Parkinson’s disease is degenerative and terminal, with no known cure. 14.

PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

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“[E]vidence that the employer’s claimed reason is false ... will tend to suggest that the employer seeks

to conceal the real reason for its actions, and this in turn may support an inference that the real reason

was unlawful.” (Mamou, 165 Cal.App.4th at 715.) (Emphasis added.) The U.S. Supreme Court is in

accord, holding that “[t]he factfinder’s disbelief of the reasons put forward by the defendant (particularly

if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima

facie case, suffice to show intentional discrimination.” (St. Mary’s Honor Center v. Hicks (1993) 509

U.S. 502, 511.) (Emphasis added.) In such an event, the “rejection of the defendant’s proffered reasons

will permit the trier of fact to infer the ultimate fact of intentional discrimination ... [and] upon such

rejection, ‘[n]o additional proof of discrimination is required,’[Citation].” (Ibid, italics in original.)

Mr. Clausen’s evidence—which must now be accepted as true—demonstrates that, since at least 2008,

FOX had known he regularly delegated the composition of music to members of his team.15 (A.Clausen

Decl. ¶¶ 24-26, 46-63; S.Clausen ¶¶ 8-9, 16-18, 25-37; Exhs. 1-3) This fact is confirmed not only through

FOX’S own cue sheets, but emails between Matt Selman, Al Jean, Carol Farhat and even James Brooks,

wherein discussions about Scott Clausen and others composing cues are undeniable.16 (A.Clausen Decl. ¶¶

26, 46-63; S.Clausen Decl. ¶¶ 25-37; Exhs. 1-2 and 3, pp. 1-4, 6-13, 17-27)

The notion that Mr. Clausen was unable to capture the showrunners’ vision is equally ludicrous.

Pulling aside Selman’s December 2016 confession about feeling honored to be part of Mr. Clausen’s

orchestration entourage (Exh. 6), during his 27 years as the composer of the show, Mr. Clausen won two

Emmys, five Annie Awards and became the most nominated composer in Emmy history, amassing a

record 23 Emmy nominations for his work on The Simpsons. (A.Clausen Decl. ¶ 10) The mere fact that

Al Jean and Matt Selman routinely skipped the recording sessions suggests how much faith and

confidence they had in Mr. Clausen delivering their vision. (A.Clausen Decl. ¶¶ 22, 37-38)

15 Each episode could contain 30 or more cues. (A.Clausen Decl. ¶ 19) Meanwhile, the score foreach episode had to be written in less than a week. (A.Clausen Decl. ¶ 28) As the show’s composer, Mr.Clausen was in charge of overseeing the scoring of each episode, not personally writing every piece ofmusic that went into every episode. (A.Clausen Decl. ¶ 25) Defendants’ contrary position isintellectually dishonest in light of the obvious limitations imposed by the short deadlines.

16 In Yanowitz, the California Supreme Court found triable issues of fact as to whether theemployer’s proffered reasons for termination were pretextual when the alleged complaints about theemployee were known prior to the protected activity, but no action had ever been taken. (Yanowitz, 36Cal.4th at 1061-1062.) In Soria, evidence of the employer’s sudden interest in the plaintiff’s long-historyof tardiness, after it learned she was disabled, established pretext. (Soria, 5 Cal.App.5th at 596.)


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Not only that, Mr. Clausen was never once criticized by anyone and there is no evidence of anyone

ever complaining about his work or abilities at any time. (A.Clausen Decl. ¶¶ 10, 36-37; S.Clausen

Decl. ¶ 24; Bush Decl. ¶ 13) Surely, if Mr. Clausen was having so much trouble meeting expectations,

as Defendants now shamelessly and disingenuously contend, there would have ben one email, text

message, instant message, or internal memo mentioning it during his 27 years with the show.

Like the rest of their arguments, there is likewise no merit to the proposition that Mr. Clausen was

incapable of composing modern music, including electronic, rap and/or hip hop. During his time as the

composer of The Simpsons, Mr. Clausen scored nearly all of the music for each episode, spanning a wide

spectrum of styles and genres, from rock, R&B, rap/hip hop, electronic, disco, country, big-band, choral,

contemporary, etc. (A.Clausen Decl. ¶¶ 6, 9, 36, 44) By 2017, Mr. Clausen had amassed an extensive

and comprehensive music library from which he could draw. (A.Clausen Decl. ¶¶ 6, 9, 36, 44) This

includes numerous rap and hip hop cues, including the “Homerpalooza” episode of season 7, where the

producers had him compose the hip hop song “Insane in the Membrane” by the rap group Cypress Hill,

using an orchestra. (A.Clausen Decl. ¶ 45)

There is also no truth to the claim about Mr. Clausen requiring an orchestra or not being able to

furnish synth music. The producers, including James Brooks, all knew the music for each episode was

“mocked-up” with computer software before the recording sessions, thereby allowing them to review and

make whatever changes to the music they wanted before it was recorded. (A.Clausen Decl. ¶¶ 29-31;

S.Clausen Decl. ¶¶ 16-18, 51-53; Exh. 3, pp. 8, 14-17, 21; Exh. 5, pp. 1, 3, 6, 9-17) Mockups could have

even been refined for broadcast. (A.Clausen Decl. ¶ 42)

However, the creator and producers of the show had decided to use a live orchestra for the music.

(A.Clausen Decl. ¶¶ 39, 43) In the early 1990s, the producers even instructed Mr. Clausen to remove

the synthesizer and electric piano he had included in the orchestra. (A.Clausen Decl. ¶¶ 40-43)

Notwithstanding, Mr. Clausen still used synthesizers, but only when scenes or episodes required it.

(A.Clausen Decl. ¶ 41) For instance, in 2007, Mr. Clausen composed a parody of the television show

24, containing only synth music. (A.Clausen Decl. ¶ 41; S.Clausen Decl. ¶ 39) There is simply no

evidence of Mr. Clausen ever expressing any opposition to synth music because he was fully capable of

creating it, as he had done so on countless times. (A.Clausen Decl. ¶¶ 42-43; S.Clausen Decl. ¶ 38)


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Finally, the evidence shows that Defendants’ claims about the budget are also untrue. Mr. Clausen

received a budget that he had to manage. (A.Clausen Decl. ¶¶ 14-15) Mr. Clausen worked well with

Carol Farhat to meet all budgetary limits and was never once criticized or given any negative feedback

by anyone about the budget or the cost of the show’s music. (A.Clausen Decl. ¶¶ 14, 16, 36, 80-81) Mr.

Clausen was also never told by anyone that the music budget was too high or that FOX wanted to use

synth music in order to transition away from the orchestra and save money. (A.Clausen Decl. ¶ 79)

3. DEFENDANTS’ LIES ABOUT THE REASON FOR PLAINTIFF’S TERMINATION

ESTABLISH THE MINIMAL MERIT OF HIS AGE DISCRIMINATION CLAIMS.

California’s age discrimination statutes are to be enforced “with the goal of not only protecting older

workers as individuals, but also of protecting older workers as a group, since they face unique obstacles

in the later phases of their careers.” (Govt. Code § 12941.) The age discrimination laws protect those

workers who are over the age of 40 and these laws are interpreted “broadly and vigorously.” (Govt. Code

§§ 12940(a), 12941.)

Under the FEHA, a plaintiff need only offer circumstantial evidence supporting a reasonable inference

of age discrimination. “In order to make out a prima facie case of age discrimination under FEHA, a

plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse

employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered

the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e.,

evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell

v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.) (Emphasis added.)

Here, without any evidentiary support whatsoever, Matt Selman asserts that Mr. Clausen had a

“comfort zone” that did not include modern music, including rap. (Selman Decl. ¶ 19) Likewise, James

Brooks inexplicably admits to having concluded that Mr. Clausen was not the “right choice” when it

came to composing rap music. (Brooks Decl. ¶ 3.)

Aside from his sudden termination and younger replacement, these telling statements additionally

support Mr. Clausen’s claims of an age bias. This is because Brooks and Selman have unveiled their

discriminatory ageist beliefs that Mr. Clausen was only good at old styles of music, rather up-to-date

genres, such as rap, electronic, etc.—even though the evidence and his work history prove otherwise.


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In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, an employer described a female employee as

“macho” and “masculine” and told her that “to improve her chances for partnership, ... [she] should ‘walk

more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and

wear jewelry.’” (Ibid, at 231-232 and 235.) (Emphasis added.) After her employer declined to nominate

her for a partnership position, the plaintiff sued, alleging sex/gender discrimination. (Id., at 231-233.)

On review, the U.S. Supreme Court concluded that an employer who makes a decision predicated

upon preconceived stereotypes—e.g., gender, age, race, disability—had acted discriminatorily and in

violation of the law. (Id., at 250.) Thus, stereotyping based upon protected gender-role characteristics

was actionable as discrimination, even where the defendant employer purported to offer a legitimate

reason for the adverse action—i.e., the plaintiff’s allegedly poor interpersonal skills. (Id. at 250-252

(plurality); see also id., at 258 (White, J., concurring); id., 272-273 (O’Connor, J., concurring).) This

same rationale applies here given Defendants’ baseless conclusions and assertions about Mr. Clausen.

Stereotyping aside, lies, particularly about poor performance, can also demonstrate pretext. In Cheal

v. El Camino Hosp. (2014) 223 Cal.App.4th 736, the plaintiff, a 61-year-old with an exemplary

performance record, was fired for performance deficiencies by a new supervisor. Based on the plaintiff’s

performance history, the subjective nature of the supervisor’s complaints and the false statements the

supervisor gave, Cheal reversed, finding sufficient evidence of pretext. (Ibid, at 753-754.)

Similarly, in Sandell, a 60 year old employee was fired for poor performance and replaced by

someone just five years younger. The plaintiff’s performance evaluations were largely positive overall,

save for his last year of employment, which was mostly negative.17 (Sandell, 188 Cal.App.4th at 306.)

Sandell reversed summary judgment, in spite of the defendant’s undisputed evidence that during the

first year of plaintiff’s employment as the VP of Sales, sales dropped for the first time in 20 years and

fluctuated thereafter. (Id., at 304-305 and 315.) Sandell focused on the multiple inconsistencies in the

defendant’s evidence and heavily relied on the plaintiff’s two positive reviews in context with other

peripheral facts. (Id., at 315-317.) Sandell even observed that the parties’ dispute over the factual issues

relevant to the plaintiff’s alleged performance deficiencies “demonstrates why this case is not an

appropriate one for summary judgment and instead should be heard by a jury.” (Id., at 319.)

17 Unlike Mr. Clausen, the Sandell plaintiff had been with the defendant employer for just threeyears and only had two positive overall performance reviews. (Sandell, 188 Cal.App.4th at 305-306.)


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In Begnal v. Canfield & Assoc., Inc. (2000) 78 Cal.App.4th 66, an age discrimination plaintiff was

replaced by someone older than her, resulting in a JNOV. In reversing, Begnal held that the employer’s

falsification of its stated reason for the plaintiff’s termination substantially supported an inference

favoring age discrimination. (Ibid, at 76-77.) Begnal recognized that “[i]t is both logically and practically

possible for an employer to discriminate against a person on the basis of a protected personal

characteristic despite the fact that the person is replaced by someone with the same characteristic.” (Id.,

at 74, internal quotes and citation omitted.) (Emphasis added.)

4. THE CONTINUING VIOLATION DOCTRINE WILL SAVE ANY FEHA CLAIM

THAT MIGHT BE UNTIMELY.

Though Mr. Clausen’s claims are timely, the continuing violations doctrine tolls the one year statute

of limitations period when an employer has engaged in a series of continuing and related FEHA

violations—provided that at least one of the violations occurred within the one-year period. (Richards,

26 Cal.4th at 823-824.) This rule is applicable to all FEHA causes of action. (Yanowitz, 36 Cal.4th at

1056.) A “‘systematic policy of discrimination is actionable even if some or all of the events evidencing

its inception occurred prior to the limitations period ...[because] the continuing system of discrimination

operates against the employee and violates his or her rights up to a point in time that falls within the

applicable limitations period.’ [Citation].” (Morgan, 88 Cal.App.4th at 64.) (Emphasis added.)

A continuing violation is established through “‘a series of related acts against a single individual.’

[Citation].” (Ibid.) (Emphasis added.) This means an employer can be held “liable for actions that take

place outside the limitations period if these actions are sufficiently linked to unlawful conduct that

occurred within the limitations period.” (Yanowitz, 36 Cal.4th at 1056.) (Emphasis added.)

In Yanowitz, the plaintiff was subjected to a series of retaliatory acts for over a year, after she refused

to comply with a discriminatory directive from her manager. (Ibid, at 1039-1040.) Although the plaintiff

filed her DFEH complaint over a year after most of the acts occurred, liability was still imposed for the

otherwise time-barred actions because the plaintiff had alleged a course of retaliatory conduct. (Id. at

1059.)

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In Richards, the plaintiff sought and received numerous and extensive accommodations, during a wide

span of time, though there was evidence of the employer’s unwillingness to fully comply. (Richards, 26

Cal.4th at 803-811.) When plaintiff complained about not being fully accommodated, a manager told her

she was “facing a brick wall and nothing was going to change.” (Ibid, at 809.) Over a year later, the

plaintiff resigned and nearly a year after that, filed her DFEH complaint and brought suit. (Id.) However,

at trial, the plaintiff was allowed to recover damages for the entire five-year period. (Id., at 811.)

In upholding the verdict, the California Supreme Court held that “when an employer engages in a

continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a

disabled employee or engaging in disability harassment, and this course of conduct does not constitute

a constructive discharge, the statute of limitations begins to run not necessarily when the employee first

believes that his or her rights may have been violated, but rather, 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.” (Id., at

823.) (Emphasis added.) As such, “an employer’s persistent failure to reasonably accommodate a

disability ... is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in

kind—recognizing ... that similar kinds of unlawful employer conduct, such as acts of harassment or

failures to reasonably accommodate disability, may take a number of different forms [Citation]; (2) have

occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Id., at 823.)

(Emphasis added.) “‘[P]ermanence’ in the context of an ongoing process of accommodation of

disability,” means “that an employer’s statements and actions make clear to a reasonable employee that

any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will

be futile.” (Ibid, at 823.) (Emphasis added.) Since this analysis relating to permanence is a “fact specific

inquiry,” it is inappropriate for summary judgment, making it also inappropriate here. (Id., at 824.)

Here, Selman knew about Mr. Clausen’s condition on December 9, 2016 and Farhat learned about it

on June 30, 2017. Once his disability was known, FOX’S continuing affirmative duty to engage in the

interactive process and accommodate arose. (2 C.C.R. § 11068(a); Prilliman, 53 Cal.App.4th at 950;

A.M., 178 Cal.App.4th at 464; Soria, 5 Cal.App.5th at 600.) This included the duty to inform Mr. Clausen

about all accommodations that FOX had available. (Prilliman, 53 Cal.App.4th at 950.)


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DATED:

PLAINTIFF'S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP

Nevertheless, FOX did nothing, never once engaging him in the interactive process and making no

efforts to inform him about what accommodations were even available. Instead, FOX abruptly terminated

Mr. Clausen after 27 years based upon lies and subterfuge.

The fact that the season had ended is also of no impoft, as his employment continued. In fact, the day

that Mr. Clausen met with Farhat was for the recording of vocals for the upcoming season, after the

201612017 season had ended. (A.Clausen Decl. flf| ß-7a; Exh 7, pp. 1-7) Therefore, despite its

affirmative duty to act, Defendants chose to do nothing. Defendants' omissions thereby amounted to a

pattern of suffrciently similar conduct-the failure to engage in the interactive process and offer

accommodations-which did not reach permanence until Mr. Clausen was fired in August 2017.

5. Pr,arNunn's RnvIIINING CAUSES oF ACTION ARE DNRIVNUVE OF HIS

FEHA Cl¡¡tvts AND SuRvrvE F'oR THE SAME RnlsoNs.

Mr. Clausen's declaration amply covers all of Defendants' contentions. Even where a plaintiff fails

fo directly refute a defendant's evidence, the court "cannot ignore reasonable inferences that might be

drawn from the circumstances plaintiff did show, particularly at this stage of the case." (Jeffra,39

Cal.App.5th at 485.) (Emphasis added.)

All of Mr. Clausen's remaining causes of action (failure to prevent, UCL and IIED), arise out of the

same core facts underlying his FEHA claims.rs Mr. Clausen also re-submits herein his request for

discovery so as to be able to more fully oppose Defendants' Motion.

IV.

CONCLUSION

For the reasons stated herein, Defendants' instant anti-SLAPP Motion must be denied.

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