morning everyone you may be seated we have a student group here today as well we have a student group where are they from where i write so i want to welcome the students from saratoga high school and we will take the cases that in the order in which they appear on the docket we've submitted one case previously citizens for fair representation versus p d f so let's start with a stray verses mcqua this watch the clock i will say another preliminary matter the miss astor did not contest the trial court's determination with respect to supplemental jurisdiction as it was based on the lack of federal claims and we would expect that should this matter be remanded to the trial court for purposes of adjudicating federal claims that the trial court would revisit that issue we indicated that in our papers so to get to more important matters we believe that the court rightly concluded that the facts quote the facts alleged here are sufficient to allege racial discrimination visit the respondent mcquade and we believe that in fact was confirmed by citation of mack for a lack of diversity in structural discrimination and by the board of directors of mac which concluded that  based retaliation harassment constructive just charge against the defendant but none of the defendants was your was her employer and you don't contend that the former employer is liable for any of us so how do we been established under one thousand nine hundred and one that initially there is no requirement that a defendant have a contractual relationship with a plaintiff to be liable the cases are  it's a case that involves i believe twenty five dollars twenty five members of the hospital committee that were not in a contractual relationship with the plane that at least as far as liable for the actions of lawyer who you don't see or terminating your client based on racial animus right that is right but it is an extremely unusual circumstance here  we essentially if you step back the large larger picture here is one of effectively a coup a corporate takeover by the volunteers many of them who are highly placed and well funded and they essentially staged a coup and disrupted the normal processes of this corporation and d that the there is liability if so there is a liability if the adverse action is the intent in consequence of the tortfeasor is discriminat consequence of a withdrawal of support led by mcquade that inc incapacitated mack moran advocates for children if there is no employer there is no employment resignation necessarily follows and i think the case the cases are fairly legion that if a reasonable person would resign under the circumstances that is constructive terminations and here there was no option well it wasn't just a question of troubles me is this i if your characterization of as mcquade of course is a diabolical one i don't know the lady she may be a really wonderful person she may not be i don't know but it seems clear from the pleadings that she was if not the major sponsor or source of the entities money what you seem to be saying is that because she didn't like your client she tried to get the company not to hire her in  the st place even though she was not personally successful in getting the board to terminate her she just stopped funding and as you seem to be saying that she has violated nine hundred and eighty one because she made that choice because she had racial anim is that correct yes that is correct and given the all of the actions that she took you have to room it's important to remember that miss sponsor nonprofit organizations that they think are really good sometimes they don't like people who are employed there or they don't continue to like them and they try to get them released or to depart in this case management quite as alleged to have done everything she could to get her to get fired if she one successful she tried to stop her from getting fired she wasn't successful but eventually when she stopped funding then your client decided right that's right i mean essentially one thing led to another and reasonably foreseeable consequences to the orchestrated withdrawal is support the intent was clear and what is important to remember here is that we have a direct line from protected action on the part of miss asteroid from protected action steps she took to prevent future racial discrimination and to integrate mack and i direct line between excuse me that's all true but i'll take that as true just as you have pled but it's get down to the fact mcquade and others as she was able to convince did not like your client they did not like what she was doing now you might say well that's discriminatory but the reality what you seem to be saying is that she's going to violate nine one if she doesn't continue to fund an organization that is by then headed by someone who is taking the organization in a direction that she doesn't like is that your that your position no  say i'm trying to be as direct as i can be if if and as your as your honor has indicated if some significant portion of the rationale for her conduct mcquade's conduct and her attempt to cause ms as trees failure what was racial racially animated or retaliatory even if there are other reason is it seems that you could be if you will creating a cause of action against almost every major individual funder of charities in perhaps the united states because  none of them is perfect some of them may have racial animus that maybe not voices like ms mcquade allegedly did but it seems like you're creating a very difficult situation  here i just i i understand the concept of basically a racially based intentional under fair and atrocious interference with contractual business relationship which seems to be the kind of thing you're suggesting here but the fact that she has racial the because we believe very strongly there are strong federal claims here as it wasn't just miss mcquaid acting in isolation she stated very clearly that she was acting on behalf of the moran cos association and she intended to cause miss asked rita fail and she recruited other other causes to that end and was successful i think the fact running out of time here i do want to make a couple of other important points one is that we do now have a california court of appeal decision and we i ask for judicial notice we think that this is collateral  issue in before the court with respect to a hostile environment yes it's a different claim but there there's an issue perfectly preclusion and what the court determined was this very same nexus of facts this this extended campaign of exclusion insubordination and abuse miss ass tree sufficiently pled that the proof ossy case and that necessarily means that hostile environment was was showing here so what we think that there's a potential collateral stoppel in supplemental briefing is order in a in order and perhaps i should stop by what is the name of the case we did it in the stand i'm asking you what's the name of it yes the name of the case the name of case i t should be it should be this is a published decision of the california court of appeals yes and well actually it's not published but it's binding between the parties are she a party she was on the same acts that are alleged to be who are assman and hostile invited the very same acts in the california court of appeal actually decided they were racially in part that they were racially motivated and they represent intentional infliction of prior counsel i voluntarily dismissed it and move the case to federal court under the slab statute the defendants are entitled to seek their attorneys fees they saw rd tourney's fees and a determined to determination on the merits must be made to award attorneys fees and so that's what we have here a determination on the merits well wait a nd so wait what is the relevance of the case and the relevance of the case is that it has been  dismissed that case and in this case was was actually had been filed a little bit before that dismissal so that case was gone and this case proceeded and meanwhile there was feel it you dismissed i dismissed the state case i actually offered to pay his fees but we needed to litigate it and so we litigated it now we have this decision and it's in my  to the facts here the state court of appeals decision simply held that miss astore had met her burden to defeat an anti slapp motion to the trial court for the trial court to make a decision as to the appropriate reduction in fees and counsel and i have stipulated to that and we i think recently obtained an order to that effect nothing else has happened because counsel astor against james finley which the court of appeals did not touch so they're still fees as to as to those claims awarded to defendants so i just want to clear that up briefly  correct or incorrect there is some evidence sure e evidence presented but it's not it's not a trial on the merits i don't think and it's not a determination that  her intentional infliction of emotional distress  claim going to this matter it's been acknowledged that there are at the facts of this case are unique there's no precedent for extending federal civil rights liability under one thousand nine hundred and one or any other federal or that there are circumstances such as the ku klux klan case that case is interesting though because that was a preliminary injunction case number one and also in a footnote the courts mentioned that the defendants did not even raise the employer employment issue at all and that would need to be fully briefed at trial at the merits so i don't think it goes as far as as it seems at st blush it's a fact here that i think is critical is in this astra is admission that her employer mack did not breach obligations to her it's undisputed it's an admission and i think it's pertinent because there are some striking parallels to the dominoes  pizza versus mcdonald case where the supreme court upheld the district court's granting of a motion to dismiss the one thousand nine hundred and one claim in domino's pizza there were several contracts between the plaintiffs corporation and the defendant briefing before the supreme court the plaintiff in domino's pizza introduced the argument that the defendants had interfered with his own contract with his corporation the supreme court in footnote four rejected that argument because plaintiff had acknowledged that his corporation quote did not breach any contractual obligations to him it's the same thing that we have going on here and  properly dismissed by the district court i'd like to st point out some of the concessions that admissions that were made by plaintiff below and to this court because they define the scope of the claims against judge wood and the reason i bring this up your honor because because if you look at the  rd amended complaint it's not really clear exactly which claims or allegations are being asserted against judge wood and i would say that the same held true in the nd amended complaint and when we moved to dismiss that pleading we moved on the  and one claimed one thousand nine hundred and five claim and a procedural due process claim that was also asserted against judge wood in response to that motion and the plaintiffs expressly conceded that she was not bringing in a racial discrimination claim against judge would she was not alleging the judge was part of this race based conspiracy and she was voluntarily dropping her procedural due process claim and i think this is important because under this court's ruling in walsh versus nevada department  our briefing plaintiff was required to plead three elements the st is she had to plead the existence of an actual race based conspiracy the nd is that judge would had actual knowledge in time to prevent  recy and the rd element is the judge would have had the authority to prevent a conspiracy after the st element i know that my colleague mr finn has briefed that issue judge would brief that issue i would just say that there were not plausible from the rd amended complaint the plaintiff describes eight month campaign between april of sixteen and december of two thousand and sixteen in which the volunteers engaged in wrongdoing and i would say that when you when you look well so for instance paragraph sixteen of the thirty minute complaint says the goal of this alleged conspiracy was to quote destroy max independence and ability to function now she alleges that that was complete by december the only allegation that's directed towards judge wood is in paragraph forty five dollars of the thirty minute complaint and there's no allegation the judge would knew that any of this stuff was going on until she approached miss astor a in january and informed her that because of lack of community support and because of the admission that mack was no longer functioning that she was going to withdraw casa designation under the california rules of court at that time it's alleged that miss asked ray said these complaints that the volunteers are making are based on race and it's actually alleged in the complaint the judge would told ms astra you know i'm not making any determination on the validity of these complaints but the lack of community support is enough to decertify under the rules court so there's no actual knowledge of the rd element your honour's is the power to prevent plaintiffs makes a conclusory allegation and a judge would somehow exercise power over the operation of maque i would say that that  to remove volunteers in the courtroom setting but the authority to supervise volunteers generally was by rule of court delegated to the program director so there's north already i mean the judge would could could not have walked into mac and somehow told these volunteers who were allegedly misbehaving to stop your honor there's a lot of other issues that are involved now time if the court has no other questions all person has to act under color of state law and significantly point of his not play any facts that kalkaska was a state actor or acting under color of state law kalkaska is a nonprofit entity that provides assistance and training to local casa programs basically as a subject matter expert plaintiff herself has admitted in her rd amended complaint that parts of working in conjunction with the california being a subject matter expert on casas and also networking with cost local casa programs and being available for consultations by the specific cost of programs and of what all the costs have to comply with and all of that and being subject matter experts specifically is just available in an advisory role and casa the kalkaska is not written into the statute so there is no direct link there in terms of being a state actor under color of state law if you just focus on the specific factual what what is pled in the entirety of the complaint kalkaska did not know of any racial animus and certainly the only reasonable inference that can be inferred is that to the extent kalkaska was involved at all it had previously supported plaintive in her efforts to diversify mack the rd amended complaint specifically says that for the st six months from april to october of tw previously supported her and then turned course then the only reasonable inference to be drawn by that is that the change in position had nothing to do with racial animus and so there is  trauma nation of plaintiff again this case as all of you have pointed out is really an employment discrimination case and she has not sued her former employer and she seeking an employment related recourse claim again in the th circuit this case really is not just about personal differences and the fact that miss mcquaid may not have liked miss asiri it's about retaliation and it's about  of proof what we need to prepare to plead to plausibly suggest a right to relief and the right to discovery at this point and i think that we have done that given the tight line the tight line and actually the express admission by ms mcquade that she was in fact retaliating for protected action for steps to to integrate and prevent future discrimination at  that was that were approved well that were proved by again if if are allegations were against her employer you'd be dead on the problem i have is she was in her employer she was a sponsor so everywhere she did everything she could mcquade she did everything she could to get mack to fire and originally not hire your client she was not successful she decided not to fund and that's a whole different ballgame in these cases that your side the but she was successful and killing mack because she found no not just her everyone else that she recruited and it's like honor and this is the last thing that i will say imagine if you have a mutinous crew on a ship they they mutiny they take the ship they rename it i don't think there's any court in the united states that would not and without her money it wouldn't have existed in the st place well that her money helped but there was a lot of money that came from this is another part of this case came from federal grants and other places that were