TRIAL BRIEF OF DEFENDANTS MATTHEW WAYNE, MIRIAM DELGADILLO, 

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Jacobson Markham

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Richard M. Jacobson, Esq. – SBN 114520

Joseph T. Urbanic, Esq. – SBN 302094

JACOBSON MARKHAM, L.L.P.

8950 Cal Center Drive, Suite 210

Sacramento, CA 95826

Tel: 916.854.5969

Fax: 916.854.5965

Email: rmjacobson@jacobsonmarkham.com

Email: jurbanic@jacobsonmarkham.com

Attorneys for Defendants

MATTHEW WAYNE, MIRIAM DELGADILLO, 

LUCI ROGERS, and TAMMY WATSON

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ex rel.

STEVEN FALLON and on behalf of the

STATE OF CALIFORNIA,

Plaintiffs-Relators,

vs.

BELL TRANSIT CORPORATION; et al.,

Defendants.

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No. 16-cv-06994-PJH

TRIAL BRIEF OF DEFENDANTS 

MATTHEW WAYNE, MIRIAM

DELGADILLO, LUCI ROGERS AND

TAMMY WATSON

_____________________________________

Trial Date: March 6, 2023

Time: 8:30 a.m.

Dept: Oakland Courthouse, Ctrm 3, 3rd Fl

Action Filed: December 6, 2016

Defendants Matthew Wayne, Miriam Delgadillo, Luci Rogers, and Tammy Watson

(collectively, “Defendants”), submit the following trial brief in the above-entitled civil action, 

adverse to Plaintiffs United States of America, ex rel. Steven Fallon and on behalf of the State of 

California, (“Plaintiffs”). 

INTRODUCTION AND SUMMARY OF THE CASE FOR THE DEFENSE

This case arises out of allegations made by Steven Fallon (“Relator”), a former employee of 

Hayward Unified School District (hereinafter “HUSD” or the “District”). Relator was employed by 

HUSD from 2014 until he resigned in 2017, managing the Facilities, Custodial, and Regular 

Education Transportation departments. His position had no involvement in Special Education or 

Special Education Transportation, which were entirely managed by HUSD’s Special Education 

Department. 

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During Relator’s time at the District, he purports to have uncovered some nebulous scheme, 

the crux of which, he alleges, was to arrange for individual transportation of an unnecessarily high 

number of special education students by certain transportation providers, in violation of the law and 

for personal financial kickbacks. Apparently discovering that he could not prove the existence of a 

kickback scheme, he now relies upon some esoteric theory to attempt to state his false claims case. 

However, the evidence will show that there was no scheme, and evidence regarding the placement 

of individual students in various forms of transportation was actually the product of business 

conditions and limitations of the primary transportation provider. 

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

I. PROCEDURAL HISTORY

Plaintiffs filed the present lawsuit under seal on December 6, 2016. A First Amended 

Complaint was filed under seal on June 21, 2019. A Second Amended Complaint was filed on 

August 24, 2020. A Third Amended Complaint (“TAC”) was filed on April 6, 2021, which remains 

the operative complaint. This court dismissed many of the claims alleged in the prior pleadings and 

completely dismissed defendants’ employer HUSD. In its order granting in part and denying in part 

defendants’ Motion to Dismiss the Second Amended Complaint [Doc. 109] the Court denied 

defendants’ request to dismiss these individual defendants from the false claims causes of action 

since they were named solely in their individual capacities. The Court cited Stoner v. Santa Clara 

Office of Educ., 502 F.3d 1116 (9th Cir. 2007). 

“[S]tate employees sued in their individual capacities are persons who may be 

subject to liability for submitting a false claim to the United States.” 502 F.3d at 

1124. As mentioned above, the SAC specifies that the individual HUSD 

defendants are being sued in their individual, not official, capacities. And because 

the California FCA is “patterned after” the federal FCA, defendants acting outside 

the scope of their employment would not be immune under either law. Wells, 39 

Cal.4th at 1187.”

Doc. 109 at 7-8. (emphasis added)

In other words, the only reason defendants Wayne, Watson and Delgadillo are even 

answering to false claims allegations is because they have been named in their individual capacities.

But, as the Court rightly pointed out, if they were acting within the scope of their employment when 

the alleged wrongdoing occurred, they would be immune from FCA liability just like their employer 

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HUSD. The undisputed evidence in this case will show that any alleged violations of the CFCA by

the individual defendants occurred within the scope of their employment with HUSD.

Within the TAC, Plaintiffs alleged six causes of action: 1) Presentation of False claims under 

the Federal False Claims Act; 2) False Records and Statements under the Federal False Claims Act; 

3) Presentation of False Claims under the California False Claims Act; 4) False Records and 

Statements under the California False Claims Act; 5) Unlawful Employment Retaliation under the 

Federal False Claims Act; and 6) Unlawful Employment Retaliation under the California 

Whistleblower Act. On April 20, 2021, Defendants filed a Motion to Dismiss the Third Amended 

Complaint. The Motion was granted in part and denied in part. As of August 18, 2021, the 

following claims and parties remain: 1) presentation of false claims in violation of the Federal False 

Claims Act, against Defendants Wayne, Delgadillo, and Watson; 2) Making materially false records 

or statements in violation of the Federal False Claims Act, against Defendants Wayne, Delgadillo, 

and Watson; 3) Presentation of false claims in violation of the California False Claims Act, against 

Defendants Wayne, Delgadillo, and Watson; 4) Making materially false records or statements in 

violation of the California False Claims Act, against Defendants Wayne, Delgadillo, and Watson; 

and 5) Retaliation in violation of 31 U.S.C. § 3730(h), against Defendants Wayne, Watson, and 

Rogers. 

On August 25, 2022, Defendants filed a Motion for Partial Summary Judgment as to only the 

first and second causes of action under the federal False Claims Act, which was unopposed and 

granted. Therefore, the only causes of action that remain are as follows: 1) Presentation of false 

claims in violation of the California False Claims Act, against Defendants Wayne, Delgadillo, and 

Watson; 2) Making materially false records or statements in violation of the California False Claims 

Act, against Defendants Wayne, Delgadillo, and Watson; and 3) Retaliation in violation of 31 

U.S.C. § 3730(h), against Defendants Wayne, Watson, and Rogers. These first two causes of action 

are only related to “Category 1” of the alleged false claims, which is inflating the number of special 

needs students in need of individual student transportation.

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2. FACTUAL BACKGROUND

Defendants in this case are Matthew Wayne, Miriam Delgadillo, Luci Rogers, and Tammy 

Watson. Dr. Wayne was the Assistant Superintendent of Educational Services and Interim 

Superintendent at HUSD when Relator was employed there. Ms. Watson was the Special Education 

Director of HUSD. Ms. Delgadillo was an Office Specialist who was supervised by Ms. Watson. 

Ms. Rogers was the Chief Financial Officer of HUSD. 

Many of the claims and allegations made in Relator’s Third Amended Complaint have 

become irrelevant as this Court has struck various arguments down during the pleading motion

process. The only allegations that still must be addressed are those related to inflating the number 

of special education students who were put in individual transportation, and retaliation under the 

Federal False Claims Act. Relator’s argument as to the inflation of the number of special education 

students on individual transportation, generally, is as follows. He claims that the need for and 

means of transportation for special education students is dictated by the individual student’s 

Individualized Education Program (“IEP”). Third Amended Complaint, ¶ 44 (“TAC”). Relator

goes on to claim that “[v]ery few of the HUSD special education students who had IEPs requiring

transportation, had IEPs that required transportation by taxi or another specialized vehicle.” TAC, ¶

45. He then argues that after he complained about this “problem . . . [t]he following school year, the 

number of special education students being individually transported by HUSD daily fell from 149 to 

13.” TAC, ¶ 49. To Defendants’ knowledge, this reduction in the number of special education

students using individual transportation is the main piece of evidence that Relator will present that 

would support his California False Claims Act allegations. 

There is a simple explanation for this reduction in special education students using 

individual transportation. Defendants will show that, prior to 2016, HUSD was part of a 

transportation consortium along with many other school districts, called South County 

Transportation Group. Durham Transportation was the company that the consortium contracted 

with to transport special education students. Durham’s Director of Business Development, Mark 

Herington, has admitted that Durham was providing inadequate service to HUSD prior to the 2016-

2017 school year. There was a driver shortage and Durham could not cover all of the students

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within the consortium that they were being asked to transport, including numerous students from

HUSD. There were other factors, besides the shortage of drivers available to Durham, that made 

individual transportation necessary at times. Some special education students needed to be 

transported far outside of the District to go to specialized programs, including as far away as San 

Francisco and California’s Central Valley. Some other students had psychological or mental 

problems that required them to be transported individually for everyone’s safety, or medical issues 

that required them to be transported in ambulance-like vehicles. 

All of these factors resulted in HUSD being forced to use other providers since, by law,

HUSD has to transport every special needs student who needs transportation. 34 C.F.R. § 300.34.

Furthermore, school funding in California is based on average daily attendance, so if students were 

not getting to school, the District’s funding would be cut. See generally, Cal. Educ. Code § 46300.

Therefore, it was essential that students be transported by any means necessary, even if that required 

using individual transportation. In 2015, the consortium contract was coming to an end. Since the 

District had concerns about the quality of Durham’s services, it pulled out of the consortium. The 

District then sought a new transportation contract. Durham was the sole bidder for the contract, and 

it was awarded the contract. 

Under the new contract, Defendants will show that Durham’s responsibilities were vastly 

reduced compared to its contract with South County Transportation Group. With South County 

Transportation Group, Durham had been responsible for close to 140 routes per day. However, after 

the contract with South County Transportation Group ended, Durham focused all of its attention on 

HUSD and was only responsible for approximately 90 routes per day, which meant that far fewer 

students needed to be transported individually. Durham had the capacity to transport almost all of 

the students by yellow bus after the new contract was implemented. Therefore, the reason for the 

sharp decline in individually transported special education students that Relator is focused on was 

not due to malfeasance. Rather, it was simply a matter of Durham being overextended and short of 

bus drivers under its contract with South County Transportation Group, and then that problem being 

abruptly solved by a new contract with HUSD being implemented.

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The only other claim available to Relator at this point is that he was subject to employment 

retaliation under the Federal False Claims Act. After reporting the alleged fraud, discussed above, 

Relator claims to have undergone harassment. TAC, ¶ 77. This alleged harassment included Dr. 

Wayne, putting him on “involuntary leave”; “berating” him; and reorganizing Relator’s department. 

TAC ¶¶ 78-81. Ms. Watson is alleged to have written threatening emails and provided Relator’s

phone number to executives at Bell Transit. Ms. Rogers is alleged to have directed the Purchasing 

Department to not approve purchase orders from Relator’s department; instituted “crippling ‘new 

rules’”; sent 400 emails to Relator; and told Relator “not to dwell on the taxi stuff.” TAC ¶¶ 83-4. 

Defendants’ evidence will show that Relator resigned by choice in 2017, long after these incidents 

are alleged to have occurred, and after conducting a job search and accepting a new position while 

still employed with and being paid by HUSD. Defendants’ evidence will show that none of this

alleged conduct constituted employment retaliation, and the Relator left his position of his own 

accord. Moreover, he was in a new position instantly, meaning that there are no damages associated 

with his retaliation claim. 

Defendants made their required initial disclosure. Plaintiffs made no initial disclosure. 

Defendants deposed Chris Essman of the California Department of Education. Plaintiffs deposed 

Allan Garde and Julia Valdez of the Hayward Unified School District. Relator disclosed no experts. 

Defendants disclosed two experts. Relator conducted no expert discovery in this case. 

THE CASE FOR THE DEFENSE

I. PRESENTATION OF FALSE CLAIMS UNDER CALIFORNIA FALSE CLAIMS 

ACT (CAL. GOV. CODE § 12651(a)(1).)

A. Legal Standard

California’s False Claims Act makes it illegal for any person to “[k]knowingly present[] or 

cause[] to be presented a false or fraudulent claim for payment or approval.” Cal. Gov. Code

§12651(a)(1). A claim is defined as “any request or demand, whether under a contract or otherwise, 

for money, property, or services, and whether or not the state or a political subdivision has title to 

the money, property, or services that meets either of the following conditions: A) Is presented to an 

officer, employee, or agent of the state or of a political subdivision. B) Is made to a contractor, 

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grantee, or other recipient, if the money, property, or service is to be spent or used on a state or any 

political subdivision’s behalf or to advance a state or political subdivision’s program or interest, and 

if the state or political subdivision meets either of the following conditions: i) Provides or has

provided any portion of the money, property, or service requested or demanded. ii) Reimburses the 

contractor, grantee, or other recipient for any portion of the money, property, or service that is 

requested or demanded.” Cal. Gov. Code 12650(b)(1). 

The Judicial Council of California’s Civil Jury Instructions lay out the following essential 

factual elements that must be proven to establish this cause of action: 1) that Defendant(s) 

knowingly presented or caused to be presented a false or fraudulent claim to [name of public entity] 

for payment or approval; 2) that the claim was false or fraudulent for some specific reason; and 3) 

that Defendant(s)’ false or fraudulent claim was material to [name of public entity’s] decision to 

pay out money to Defendant(s). (CACI 4800.) California’s Government Code defines “knowingly”

as follows: with respect to information about the claim, Defendants 1) had actual knowledge that the 

information was false; or 2) acted in deliberate ignorance of the truth or falsity of the information; or 

3) acted in reckless disregard of the truth or falsity of the information. Cal. Gov. Code 12650(b)(3).

“Material” means that the claim had a natural tendency to influence, or was capable of influencing, 

the payment or receipt of money, property, or services on the claim. Cal. Gov. Code 12650(b)(4). 

It is important to note that, since California’s False Claims Act is patterned on the federal 

statute, “[t]he analysis is the same under both statutes.” Hardin v. Mendocino Coast Dist. Hosp., 

2018 WL 2984834 (N.D. Cal.) (citing Kaye v. Bd. of Trustees of San Diego Cty. Pub. Law Library,

179 Cal.App.4th 48, 49-50 (Ct. App. 2009)). This means that “it is appropriate to look to precedent 

construing the equivalent federal act.” In re Bank of New York Mellon Corp. False Claims Act

Foreign Exchange Litigation, 851 F.Supp.2d 1190, 1195 (N.D. Cal. 2012). 

B. These Defendants Did Not Submit Any “Claims,” Because That’s Not How School 

Funding Works. 

Obviously, for liability to attach under California’s False Claims Act, Relator must prove 

that these Defendants made a claim in the first place. A claim is, in short, a request or demand for 

money. Cal. Gov. Code 12650(b)(1). Money for special education transportation is provided to 

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school districts as part of their yearly budget. A school district’s yearly budget is based on a set of 

objective factors that has nothing to do with the manner in which students are transported to school. 

Demographic numbers and a limited amount of other information are provided to the state yearly, 

and the school district’s budget is determined from those objective factors. The information that is 

given to the state is audited at both the district and state level. None of the information has anything 

to do with how special education students are transported. None of these Defendants ever made any 

representations to the government about the number of, or manner in which special education

students were being transported to school, because that has no effect on how much money the state 

will give the school district the next year, it was not part of their job, and it simply isn’t done 

because there is no reason to do it. None of these Defendants told the government that they were in 

compliance with a statute, regulation, or contract, and then the government paid money based on 

that representation. To allege that happened, is to misunderstand the way schools are funded in 

California. Therefore, there were not any claims in the first place, let alone false or fraudulent 

claims.

C. Any Claims That Defendants Submitted Were Not False or Fraudulent

Defendants did not submit claims that were false or fraudulent. In order for Defendants to

be liable under California’s False Claims Act, Relator must prove that one of these Defendants

submitted claims that were actually false or fraudulent in some specific way. Cal. Gov. Code § 

12651(a)(1). Here, the evidence will show that none of the Defendants submitted any claims that 

were false or fraudulent as to the number of special education students that needed individual 

transportation. As explained above, a higher number of special education students were being 

transported individually prior to 2016 primarily because of business conditions at Durham that 

resulted from its contract with the South County Transportation Group. HUSD was forced to 

transport a high number of students individually because HUSD was required by law to transport all 

special needs students, and Durham did not have enough bus drivers available to cover all HUSD 

special needs students. This was confirmed by deposition testimony in September 2018. With 

Durham being contractually obligated to run 140 routes per day without sufficient drivers to cover 

these routes, HUSD had to fill the gap somehow to stay in compliance with the law, and HUSD did 

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that by arranging for students to be transported individually using other providers. For Relator’s

theory to be correct, there would have to have been some requirement that the District use Durham 

exclusively for transportation, which there was not, or that Durham and HUSD’s explanation of why

these students were transported individually was false, which also is inaccurate.

D. Even If Defendants Submitted False or Fraudulent Claims, They Did Not Do So

Knowingly.

Assuming arguendo that some claim or claims, submitted by Defendants, were false or 

fraudulent in some way, Defendants cannot be said to have acted in reckless disregard of the truth or 

falsity of that information, let alone with deliberate ignorance or actual disregard of the truth.

Relator must show that Defendants had the intention of knowingly presenting information that they 

knew to be false; mere negligence, innocent mistakes, and bad math do not constitute knowing 

presentation of false or fraudulent claims. U.S. v. Bourseau, 531 F.3d 1159, 1167 (9th. Cir. 2008).

Relator cannot show any evidence that would prove that. Relator has not taken the depositions of 

any of the defendants. It is unclear how he intends to prove falsity or that they acted in reckless 

disregard, deliberate ignorance, or actual disregard of the truth regarding special education 

transportation at any point.

E. A Few Specific Factors are Material to the Government Paying Money to School 

Districts, and None of Them Have Anything to Do With Transportation. 

Relator must prove that these alleged false or fraudulent claims were material in the 

government’s decision to pay out money. “[A] misrepresentation about compliance with a statutory, 

regulatory, or contractual requirement must be material to the Government’s payment decision in 

order to be actionable under the False Claims Act.” United Health Services, Inc. v. U.S. ex rel. 

Escobar, 579 U.S. 176, 192. Materiality looks to the effect on the likely or actual behavior of the 

recipient of the alleged misrepresentation. Id at 193. A misrepresentation is not material just 

because the government would have the option to decline to pay if it knew of the defendant’s 

noncompliance. Id. at 194. Furthermore, materiality cannot be found where noncompliance is 

minor or insubstantial. Id.

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Relator will not be able to show that the government had, as a condition of payment, a 

requirement that special education students must not be transported individually. In fact, it is not 

believed Relator has any witness who will be able to testify that the State’s decision to fund 

HUSD’s special education program was in any way influenced by the manner of transportation. In 

that regard, Relator has not designated any expert witness on the subject despite the fact that the 

arcane subject matter involved with special education funding is well beyond the common 

experience of lay jurors.

Defendants will prove that budgets are determined through an objective formula that has 

nothing to do with how special education students are transported. Therefore the “materiality”

element will not be established.

II. MAKING MATERIALLY FALSE RECORDS OR STATEMENTS UNDER 

CALIFORNIA FALSE CLAIMS ACT (CAL. GOV. CODE § 12651(a)(2).) 

A. Legal Standard

California’s False Claims Act makes illegal a second category of conduct, when someone 

“[k]knowingly makes, uses, or causes to be made or used a false record or statement material to a 

false or fraudulent claim.” Cal. Gov. Code § 12651(a)(2). The Judicial Council of California’s Civil 

Jury instructions direct users to modify the first of the essential factual elements when a different 

category of conduct is alleged under the California False Claims Act. Thus, the essential factual 

elements of this claim are as follows: 1) That Defendant(s) knowingly made, used, or caused to be 

made or used a false record or statement material to a false or fraudulent claim; 2) That the claim 

was false or fraudulent for some specific reason; 3) That Defendant(s)’ false or fraudulent claim was 

material to a public entity’s decision to pay out money. (CACI 4800.) The definitions of

“knowingly” and “material” are given supra.

B. There Were No False Records Because There Were No False Claims.

To prove this element, Relator would have to prove that Defendants knowingly made, used, 

or caused to be made or used a false record or statement material to a false or fraudulent claim. 

Relator’s argument is that Defendants inflated the number of special education students who were 

being transported individually. However, the number of students who were being transported 

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individually, as well as the sudden drop-off in the number of students has been explained above. 

Therefore, without any other allegation to address under the California False Claims Act, there is 

little more to say here. 

III. RETALIATION UNDER FEDERAL FALSE CLAIMS ACT (31 U.S.C. 3730(h).)

A. Legal Standard

Relator alleges that he was retaliated against under 31 U.S.C. 3730(h). Under this statute, 

Relator must prove the following: 1) that he engaged in activity protected under the statute; 2) that

“the employer knew the plaintiff engaged in a protected activity”; and 3) that “the employer 

discriminated against the plaintiff “because he . . . engaged in protected activity.” United States ex

rel. Campie v. Gilead Sciences, Inc., 862 F.3d 890, 907 (9th Cir. 2017). 

B. Relator Did Not Engage in Protected Activity Because His Allegations Were 

Unreasonable. 

Relator did not engage in protected activity at any point in his employment with the District, 

because his belief that a violation of the Federal False Claims Act had occurred was not reasonable. 

To prove the first element of this cause of action, Relator would need to show that his belief that 

there was fraud against the government was reasonable. Mendiondo v. Centinela Hosp. Medical 

Center, 521 F.3d 1097, 1104 (9th. Cir. 2008). Every allegation that Relator has brought has turned 

out to be completely unsupported by evidence, or the result of Relator misunderstanding or not 

having enough information to evaluate a situation. The evidence will show Relator had no way of 

knowing what was going on in terms of special education transportation at HUSD, because it was 

not his department. These are the reasons why so many of his claims have been dispensed with 

already, and he is left with only very few at this point in the litigation. While the rights of those 

engaging in protected activity should be paramount under the law, Relator never had any actual 

evidence of wrongdoing, so a reasonable person would have been aware that they were not engaged 

in protected activity. 

C. Relator Did Not Suffer Any Adverse Employment Action.

Relator did not suffer any adverse employment action, which means that there was no 

discrimination. “Behavior does not constitute retaliation under the False Claims Act unless it would 

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TRIAL BRIEF OF DEFENDANTS MATTHEW WAYNE, MIRIAM DELGADILLO, 

LUCI ROGERS AND TAMMY WATSON - 16-cv-06994-PJH

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Jacobson Markham

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be sufficient to constitute an adverse employment action under Title VII.” Moore v. California 

Institute of Technology Jet Propulsion Laboratory, 275 F.3d 838, 847-48 (9th Cir. 2002). Adverse 

employment action is conduct that is “reasonably likely to deter employees from engaging in”

protected activity and that has “a retaliatory motive.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th 

Cir. 2000). Some examples of this type of conduct are lateral transfers, unfavorable job references, 

and changes in work schedules. Id. This test “does not cover every offensive utterance by coworkers, because statements by co-workers do not reasonably deter employees from engaging in 

protected activity.” Id. Here, Relator seems to have alleged that every unpleasant thing he can recall 

happening during his employment at HUSD was actually retaliation. The reality is that Relator 

continued working at HUSD long after he began investigating the alleged fraud; his pay was never 

reduced; and he conducted a job search while employed at HUSD, and then went to that new job on 

his own volition.

Relator’s claim that Dr. Wayne retaliated against him does not make sense, because most of 

the conduct took place before Dr. Wayne even knew that he was implicated in this alleged scheme. 

As the evidence will show, Dr. Wayne’s actions prior to early 2017 could not have had a retaliatory 

motive, which is required for conduct to constitute retaliation, Ray, supra, 217 F.3d at 1243, 

because Dr. Wayne did not learn that he was implicated in any alleged scheme until early 2017. 

Furthermore, there is no evidence that Dr. Wayne’s “berat[ing]” of Relator had anything to do with 

Relator’s investigation into the alleged scheme. If Dr. Wayne’s conduct would not reasonably deter 

an employee from engaging in protected activity, then it did not constitute retaliation. Id. Relator

also alleges that the reorganization of his department was somehow retaliatory. However, the 

evidence will show this reorganization was done for financial reasons which transcended Relator’s 

employment. It was presented to the Board for approval, and it saved HUSD hundreds of thousands 

of dollars per year once it was implemented. The reorganization covered several departments and 

dozens of positions. There is no evidence to support Relator’s claim that this was done in retaliation 

for his actions.

Relator also claims that Ms. Rogers retaliated against him by making the purchasing 

department not cooperate with his department, sent him an excessive number of emails, 

Case 4:16-cv-06994-PJH Document 173 Filed 01/12/23 Page 12 of 15
TRIAL BRIEF OF DEFENDANTS MATTHEW WAYNE, MIRIAM DELGADILLO, 

LUCI ROGERS AND TAMMY WATSON - 16-cv-06994-PJH

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implemented “new rules,” and told him not to “dwell on the taxi stuff.” First, there will be no 

evidence that Ms. Rogers had any role in Relator’s employment. She played no supervisory role 

and worked in a completely different department. None of this behavior was done with a retaliatory 

motive in mind. If there was no retaliatory motive, there was no retaliation. Id. Defendants’

evidence will show that the issues with the purchasing department had nothing to do with the special 

education issue; that Ms. Rogers sent everyone excessive numbers of emails; and that the “new 

rules” had actually always been in place, but they started actually being followed. Furthermore, Ms. 

Rogers telling Relator not to dwell on the taxi stuff is such a friendly way of saying it, that this 

would not reasonably deter someone from engaging in protected activity. There is no threat behind 

that phrase. It sounds more like two colleagues trying to get through the week than a retaliatory 

warning. Therefore, none of Ms. Rogers’ conduct constituted retaliation.

Relator alleges that Ms. Watson sent him threatening emails and provided his phone number 

to angry executives at Bell Transit. While this conduct might signify a dysfunctional workplace, 

there is no evidence that Ms. Watson had a retaliatory motive, or that these incidents would 

reasonably deter someone from engaging in protected conduct. Ms. Watson was not even in the 

same department as Relator. She had no control over any aspect of Relator’s employment such as 

his schedule or his compensation. Therefore, her ability to retaliate in the first place was essentially

non-existent. 

CONCLUSION

It should not be lost on this court that Relator’s original Complaint contained scurrilous

allegation of “a widespread pattern of fraud and abuse” perpetrated by among others, the Defendants 

in this case. The allegations even accused Defendants from receiving “kickbacks” as an inducement

to make false claims. The claims remaining are a pittance of what was alleged in the originally filed 

Complaint. Much of Relator’s claims were so unsubstantiated that they were removed at the 

pleading stage of this case. The remaining claims barely stated enough to avoid total dismissal of 

the Third Amended Complaint. It is respectfully submitted that at the end of Relator’s case, the 

Court will wonder how we came to this point on this record. Defendants’ evidence and legal 

authorities will leave no room for a reasonable jury to have a legally sufficient basis to find for 

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TRIAL BRIEF OF DEFENDANTS MATTHEW WAYNE, MIRIAM DELGADILLO, 

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Relator in this case. Therefore, Defendants will likely move for judgment as a matter of law. Fed. 

R. Civ. Proc. 50. 

Dated: January 12, 2023 Respectfully submitted,

JACOBSON MARKHAM, L.L.P.

 /s/ Richard M. Jacobson 

RICHARD M. JACOBSON, ESQ.

JOSEPH T. URBANIC, ESQ.

Attorneys for Defendants

MATTHEW WAYNE, MIRIAM GONZALEZ,

LUCI ROGERS and TAMMY WATSON

Case 4:16-cv-06994-PJH Document 173 Filed 01/12/23 Page 14 of 15
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CERTIFICATE OF SERVICE (Civil Action No. 16-cv-06994-PJH)

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Jacobson Markham

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CERTIFICATE OF SERVICE

I, Sandra Gagnon, certify and declare as follows:

I am over the age of 18 and not a party to the within action. My business address is 8950 

Cal Center Drive, Suite 210, Sacramento, California 95826-3228. My electronic service address is 

sgagnon@jacobsonmarkham.com.

I hereby certify that on January 12, 2023, I electronically filed the foregoing TRIAL 

BRIEF OF DEFENDANTS MATTHEW WAYNE, MIRIAM DELGADILLO, LUCI 

ROGERS AND TAMMY WATSON with the Clerk of the Court for the United States District 

Court for the Northern District of California, Oakland Division, by using the CM/ECF system. The 

Court’s CM/ECF system will send an e-mail notification of the foregoing filing to all counsel of 

record who are deemed to have consented to electronic service via the Court’s CM/ECF system.

Executed on January 12, 2023 at Sacramento, California.

 /s/ Sandra Gagnon 

SANDRA GAGNON

Case 4:16-cv-06994-PJH Document 173 Filed 01/12/23 Page 15 of 15