Park v. Bd. of Trs. of the Cal. State Univ. , 217 Cal. Rptr. 3d 130 ( 2017 )

Filed 5/4/17
IN THE SUPREME COURT OF CALIFORNIA
SUNGHO PARK, )
)
Plaintiff and Respondent, )
) S229728
v. )
) Ct.App. 2/4 B260047
BOARD OF TRUSTEES OF THE )
CALIFORNIA STATE UNIVERSITY, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. BC546792
____________________________________)
To combat lawsuits designed to chill the exercise of free speech and
petition rights (typically known as strategic lawsuits against public participation,
or SLAPPs), the Legislature has authorized a special motion to strike claims that
are based on a defendant‘s engagement in such protected activity. (See Code Civ.
Proc., § 425.16, subd. (a).)1 We consider a question that has generated uncertainty
in the Courts of Appeal: What nexus must a defendant show between a challenged
claim and the defendant‘s protected activity for the claim to be struck?
As we explain, a claim is not subject to a motion to strike simply because it
contests an action or decision that was arrived at following speech or petitioning
activity, or that was thereafter communicated by means of speech or petitioning
activity. Rather, a claim may be struck only if the speech or petitioning activity
1 All further unlabeled statutory references are to the Code of Civil
Procedure.
itself is the wrong complained of, and not just evidence of liability or a step
leading to some different act for which liability is asserted. Because the Court of
Appeal ruled to the contrary, holding a claim alleging a discriminatory decision is
subject to a motion to strike so long as protected speech or petitioning activity
contributed to that decision, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Sungho Park was a tenure-track assistant professor at California
State University, Los Angeles. He is of Korean national origin. In 2013, Park
applied for tenure but his application was denied. He filed a discrimination charge
with the Department of Fair Employment and Housing and, after receiving a right-
to-sue letter, filed suit under the California Fair Employment and Housing Act
(Gov. Code, § 12900 et seq.) for national origin discrimination and failure to
receive a discrimination-free workplace.
Defendant the Board of Trustees of the California State University
(University) responded with a motion to strike. Anti-SLAPP motions are
evaluated through a two-step process. Initially, the moving defendant bears the
burden of establishing that the challenged allegations or claims ―aris[e] from‖
protected activity in which the defendant has engaged. (§ 425.16, subd. (b); see
id., subd. (e) [defining protected activity]; Simpson Strong-Tie Co., Inc. v. Gore
(2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 66–67.) If the defendant carries its burden, the plaintiff must then
demonstrate its claims have at least ―minimal merit.‖ (Navellier v. Sletten (2002)
29 Cal.4th 82, 89; see generally City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 420; Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The University argued
Park‘s suit arose from its decision to deny him tenure and the numerous
communications that led up to and followed that decision, these communications
2
were protected activities, and Park had not shown a sufficient probability of
prevailing on the merits.
The trial court denied the motion. It agreed with Park that the complaint
was based on the University‘s decision to deny tenure, rather than any
communicative conduct in connection with that decision, and that the denial of
tenure based on national origin was not protected activity, so the University had
not carried its burden of showing Park‘s suit arose from protected activity within
the meaning of section 425.16, subdivision (e). Accordingly, the trial court did
not reach the second step of the anti-SLAPP inquiry.
A divided Court of Appeal reversed. The majority reasoned that although
the gravamen of Park‘s complaint was the University‘s decision to deny him
tenure, that decision necessarily rested on communications the University made in
the course of arriving at that decision. Such communications were in connection
with an official proceeding, the tenure decisionmaking process, and so were
protected activity for purposes of the anti-SLAPP statute. The dissent argued, in
contrast, that all government action inevitably involves some form of
communication, and courts must distinguish between instances when a claim
challenges only the action itself and instances when a claim challenges the process
that led to the action. Because the claim here, in the dissent‘s estimation, involved
only the decision to deny tenure and not any arguably protected communications
that preceded it, the trial court‘s ruling should have been affirmed.
The Court of Appeal‘s division is symptomatic of ongoing uncertainty over
how to determine when ―[a] cause of action against a person aris[es] from‖ that
person‘s protected activity. (§ 425.16, subd. (b).) We granted review.
3
DISCUSSION
I. The Requisite Nexus Between the Claims an Anti-SLAPP Motion
Challenges and Protected Activity
Anti-SLAPP motions may only target claims ―arising from any act of [the
defendant] in furtherance of the [defendant‘s] right of petition or free speech under
the United States Constitution or the California Constitution in connection with a
public issue . . . .‖ (§ 425.16, subd. (b).) In turn, the Legislature has defined such
protected acts in furtherance of speech and petition rights to include a specified
range of statements, writings, and conduct in connection with official proceedings
and matters of public interest. (Id., subd. (e).)2 We consider here the relationship
a defendant must show between a plaintiff‘s claim and the sorts of speech on
public matters the Legislature intended to protect.
A claim arises from protected activity when that activity underlies or forms
the basis for the claim. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78;
Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 66; Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1114.) Critically,
―the defendant‘s act underlying the plaintiff‘s cause of action must itself have been
an act in furtherance of the right of petition or free speech.‖ (City of Cotati, at
p. 78; accord, Equilon Enterprises, at p. 66.) ―[T]he mere fact that an action was
filed after protected activity took place does not mean the action arose from that
2 As relevant here, section 425.16, subdivision (e) defines an act in
furtherance of speech or petition rights to ―include[]: (1) any written or oral
statement or writing made before a legislative, executive, or judicial proceeding,
or any other official proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under consideration or
review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law, . . . or (4) any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public interest.‖
4
activity for the purposes of the anti-SLAPP statute.‖ (Navellier v. Sletten, supra,
29 Cal.4th at p. 89; see City of Cotati, at p. 78 [suit may be in ―response to or in
retaliation for‖ protected activity without necessarily arising from it].) Instead, the
focus is on determining what ―the defendant‘s activity [is] that gives rise to his or
her asserted liability—and whether that activity constitutes protected speech or
petitioning.‖ (Navellier, at p. 92, italics omitted.) ―The only means specified in
section 425.16 by which a moving defendant can satisfy the [‗arising from‘]
requirement is to demonstrate that the defendant’s conduct by which plaintiff
claims to have been injured falls within one of the four categories described in
subdivision (e) . . . .‖ (Equilon Enterprises, at p. 66, italics added.) In short, in
ruling on an anti-SLAPP motion, courts should consider the elements of the
challenged claim and what actions by defendant supply those elements and
consequently form the basis for liability.
Thus, for example, in City of Cotati v. Cashman, supra, 29 Cal.4th 69, the
plaintiff city filed a state suit seeking a declaratory judgment that its rent control
ordinance was constitutional. The suit followed in time the defendant owners‘
federal suit seeking declaratory relief invalidating the same ordinance. In the state
action, the defendants filed an anti-SLAPP motion alleging the suit arose from
their protected activity of filing the federal suit. The motion, we explained, should
have been denied because the federal suit formed no part of the basis for the state
claim. The city‘s potential entitlement to a declaratory judgment instead arose
from the parties‘ underlying dispute over whether the ordinance was
constitutional, a dispute that existed prior to and independent of any declaratory
relief action by the owners. (Id. at p. 80.)
In contrast, in Navellier v. Sletten, supra, 29 Cal.4th 82, another case in
which the defendant‘s protected activity was the prior filing of court claims, the
prior claims were an essential part of the activity allegedly giving rise to liability.
5
The Navellier plaintiffs sued for breach of contract and fraud, alleging the
defendant had signed a release of claims without any intent to be bound by it and
then violated the release by filing counterclaims in a pending action in
contravention of the release‘s terms. Unlike in City of Cotati, the defendant was
―being sued because of the affirmative counterclaims he filed in federal court. In
fact, but for the federal lawsuit and [defendant‘s] alleged action taken in
connection with that litigation, plaintiffs‘ present claims would have no basis.
This action therefore falls squarely within the ambit of the anti-SLAPP statute‘s
‗arising from‘ prong.‖ (Navellier, at p. 90.)
While in both cases it could be said that the claim challenged as a SLAPP
was filed because of protected activity, in that perhaps the City of Cotati plaintiff
would not have filed suit had the defendant not done so first, in only Navellier did
the prior protected activity supply elements of the challenged claim. The City of
Cotati plaintiff could demonstrate the existence of a bona fide controversy
between the parties supporting a claim for declaratory relief without the prior suit,
although certainly the prior suit might supply evidence of the parties‘
disagreement. In contrast, specific elements of the Navellier plaintiffs‘ claims
depended upon the defendant‘s protected activity. The defendant‘s filing of
counterclaims constituted the alleged breach of contract. (Navellier v. Sletten,
supra, 29 Cal.4th at p. 87.) Likewise, the defendant‘s misrepresentation of his
intent not to file counterclaims, a statement we explained was protected activity
made in connection with a pending judicial matter (see § 425.16, subd. (e)(1), (2)),
supplied an essential element of the fraud claim (Navellier, at pp. 89–90).
Together, these cases reflect what we have described elsewhere, in a non-SLAPP
context, as ―a careful distinction between a cause of action based squarely on a
privileged communication, such as an action for defamation, and one based upon
6
an underlying course of conduct evidenced by the communication.‖ (White v.
Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.)
Many Courts of Appeal likewise are attuned to and have taken care to
respect the distinction between activities that form the basis for a claim and those
that merely lead to the liability-creating activity or provide evidentiary support for
the claim. In San Ramon Valley Fire Protection Dist. v. Contra Costa County
Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, a fire protection district
sued a county retirement board over the pension contribution levels the board
decided to impose. The board filed an anti-SLAPP motion, arguing the suit arose
out of the deliberations and vote that produced its decision. The Court of Appeal
disagreed. It explained that ― ‗[t]he [anti-SLAPP] statute‘s definitional focus is
. . . [whether] the defendant‘s activity giving rise to his or her asserted liability . . .
constitutes protected speech or petitioning.‘ ‖ (Id. at p. 354.) It distinguished
between the board‘s allegedly wrongful act (the contribution level decision) and
the preceding deliberations and vote. ―[T]he fact that a complaint alleges that a
public entity‘s action was taken as a result of a majority vote of its constituent
members does not mean that the litigation challenging that action arose from
protected activity, where the measure itself is not an exercise of free speech or
petition. Acts of governance mandated by law, without more, are not exercises of
free speech or petition.‖ (Ibid.; see City of Montebello v. Vasquez, supra, 1
Cal.5th at pp. 425–426 [discussing with approval San Ramon‘s distinction, for
anti-SLAPP purposes, between government decisions and the deliberations that
lead to them].)
Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181
Cal.App.4th 1207 illustrates the related distinction between speech that provides
the basis for liability and speech that provides evidence of liability. There, a
company sued a city after its government contract was terminated and a new
7
contract awarded without competitive bidding to a rival. The trial court granted
the city‘s anti-SLAPP motion. Reversing, the Court of Appeal explained, ―In
deciding whether an action is a SLAPP, the trial court should distinguish between
(1) speech or petitioning activity that is mere evidence related to liability and (2)
liability that is based on speech or petitioning activity. Prelitigation
communications or prior litigation may provide evidentiary support for the
complaint without being a basis of liability. An anti-SLAPP motion should be
granted if liability is based on speech or petitioning activity itself.‖ (Id. at
pp. 1214–1215.) While communications by the city preceding its decision might
be helpful in establishing what events led to the change in contract, the
contractor‘s claims were not based on them, but on the award of a new contract in
alleged violation of laws regulating competitive bidding. (Id. at pp. 1215, 1224.)
In Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, plaintiffs
sued for malpractice after the defendants‘ representation of them in a prior lawsuit
led to their answer and cross-complaint being struck as a terminating sanction for
discovery violations. The attorney defendants filed an anti-SLAPP motion,
arguing the malpractice suit arose out of a declaration they had submitted in the
earlier suit admitting misconduct and seeking to set aside the terminating sanction
under section 473. While the declaration supplying ―evidence of [the attorneys‘]
conduct‖ (Jespersen, at p. 631) might be protected, this was insufficient to carry
the attorney-defendants‘ first-step burden: they were being sued not for filing the
declaration, but for the underlying misconduct (id. at p. 632; see Gallimore v.
State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399
[emphasizing that courts should not confuse a party‘s ―allegedly wrongful acts
with the evidence that plaintiff will need to prove such misconduct‖ and denying
an anti-SLAPP motion where the plaintiff sought no relief for the defendant‘s
communicative acts].)
8
Courts presented with suits alleging discriminatory actions have taken
similar care not to treat such claims as arising from protected activity simply
because the discriminatory animus might have been evidenced by one or more
communications by a defendant. In Department of Fair Employment & Housing
v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, the
Department of Fair Employment and Housing (DFEH) sued a landlord for failing
to provide accommodations to a disabled tenant. The landlord had advised the
rent control board it was removing units from the housing market, disputed the
tenant‘s assertion of a disability that would have entitled her to one year to find
alternate housing, and ultimately filed an unlawful detainer action against her and
evicted her. The landlord responded to the disability suit with an anti-SLAPP
motion, arguing the suit arose out of communications with the rent control board
and tenant and the unlawful detainer suit. The Court of Appeal disagreed. The act
giving rise to liability was the ―fail[ure] to accommodate [the tenant‘s] disability‖
by allowing the tenant time to seek alternate housing; ―[t]he letters, e-mail and
filing of unlawful detainer actions constituted DFEH‘s evidence of [the landlord‘s]
alleged disability discrimination.‖ (Id. at pp. 1284–1285.)
In Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611,
the plaintiff sued his public agency employer for racial and age discrimination and
retaliation, resulting in his constructive discharge, as well as defamation. The
agency argued in an anti-SLAPP motion that the suit arose from negative
evaluations of the plaintiff made by agency officers and board members.
Addressing the nondefamation claims, the Court of Appeal rejected this argument;
―the pleadings establish[ed] that the gravamen of plaintiff‘s action against
defendants was one of racial and retaliatory discrimination, not an attack on
[defendants] for their evaluations of plaintiff‘s performance as an employee.‖ (Id.
at p. 625.) Liability, if any, would arise from the constructive discharge of
9
plaintiff for illegal reasons, not the defendants‘ evaluations of plaintiff at the
agency‘s board meeting. (Id. at pp. 624–625.)
Most recently, in Nam v. Regents of University of California (2016) 1
Cal.App.5th 1176, the plaintiff, a University of California Davis medical resident,
sued for sexual harassment, discrimination, and wrongful termination. The
defendant Regents‘ anti-SLAPP motion contended the suit arose from
communicated complaints about the plaintiff‘s performance, written warnings it
issued her, an investigation it conducted, and the written notice to plaintiff of her
termination. Not so; the basis for liability was instead the Regents‘ alleged
retaliatory conduct, including ― ‗subjecting [plaintiff] to increased and disparate
scrutiny, soliciting complaints about her from others, removing [her] from the
workplace, refusing to permit her to return, refusing to give her credit towards the
completion of her residency, failing to honor promises made regarding her
treatment, and ultimately terminating her on February 2, 2012.‘ ‖ (Id. at p. 1192.)
Nam illustrates that while discrimination may be carried out by means of speech,
such as a written notice of termination, and an illicit animus may be evidenced by
speech, neither circumstance transforms a discrimination suit to one arising from
speech. What gives rise to liability is not that the defendant spoke, but that the
defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on
account of a discriminatory or retaliatory consideration.
As many Courts of Appeal have correctly understood, to read the ―arising
from‖ requirement differently, as applying to speech leading to an action or
evidencing an illicit motive, would, for a range of publicly beneficial claims, have
significant impacts the Legislature likely never intended. Government decisions
are frequently ―arrived at after discussion and a vote at a public meeting.‖ (San
Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’
Retirement Association, supra, 125 Cal.App.4th at p. 358.) Failing to distinguish
10
between the challenged decisions and the speech that leads to them or thereafter
expresses them ―would chill the resort to legitimate judicial oversight over
potential abuses of legislative and administrative power.‖ (Ibid.; accord, Graffiti
Protective Coatings, Inc. v. City of Pico Rivera, supra, 181 Cal.App.4th at
pp. 1224–1225.) Similar problems would arise for attempts to enforce the state‘s
antidiscrimination public policy. ―Any employer who initiates an investigation of
an employee, whether for lawful or unlawful motives, would be at liberty to claim
that its conduct was protected and thereby shift the burden of proof to the
employee who, without the benefit of discovery and with the threat of attorney
fees looming, would be obligated to demonstrate the likelihood of prevailing on
the merits.‖ (Nam v. Regents of University of California, supra, 1 Cal.App.5th at
p. 1189.) Conflating, in the anti-SLAPP analysis, discriminatory decisions and
speech involved in reaching those decisions or evidencing discriminatory animus
could render the anti-SLAPP statute ―fatal for most harassment, discrimination
and retaliation actions against public employers.‖ (Id. at p. 1179.)
II. Application to This Record
We review de novo the grant or denial of an anti-SLAPP motion. (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) We exercise
independent judgment in determining whether, based on our own review of the
record, the challenged claims arise from protected activity. (Schwarzburd v.
Kensington Police Protection & Community Services Dist. Bd. (2014) 225
Cal.App.4th 1345, 1350; Martin v. Inland Empire Utilities Agency, supra, 198
Cal.App.4th at p. 624.) In addition to the pleadings, we may consider affidavits
concerning the facts upon which liability is based. (§ 425.16, subd. (b)(2);
Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) We do not, however, weigh the
evidence, but accept plaintiff‘s submissions as true and consider only whether any
11
contrary evidence from the defendant establishes its entitlement to prevail as a
matter of law. (Soukup, at p. 269, fn. 3.)
Park‘s discrimination claim requires that he show ―(1) he was a member of
a protected class, (2) he was qualified for the position he sought or was performing
competently in the position he held, (3) he suffered an adverse employment action,
such as termination, demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.‖ (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 355.) Park has alleged that he is of Korean national origin,
was qualified for tenure, and was denied tenure while other faculty of Caucasian
origin with comparable or lesser records were granted tenure. The complaint also
alleges a school dean ―made comments to Park and behaved in a manner that
reflected prejudice against him on the basis of his national origin‖ and that Park
pursued an internal grievance, which was denied. The elements of Park‘s claim,
however, depend not on the grievance proceeding, any statements, or any specific
evaluations of him in the tenure process, but only on the denial of tenure itself and
whether the motive for that action was impermissible. The tenure decision may
have been communicated orally or in writing, but that communication does not
convert Park‘s suit to one arising from such speech. The dean‘s alleged comments
may supply evidence of animus, but that does not convert the statements
themselves into the basis for liability. As the trial court correctly observed, Park‘s
complaint is ―based on the act of denying plaintiff tenure based on national origin.
Plaintiff could have omitted allegations regarding communicative acts or filing a
grievance and still state the same claims.‖ (See Department of Fair Employment
& Housing v. 1105 Alta Loma Road Apartments, LLC, supra, 154 Cal.App.4th at
p. 1285 [―DFEH might well have filed the same lawsuit had [the landlord] simply
12
ignored [the tenant‘s] claim of disability and requests for extension of her tenancy
without any communication from it at all‖].)3
The University offers a threefold response. First, it asserts that anti-SLAPP
motions are decided on the pleadings and any evidence the parties submit, and so
Park could not hide the existence of University communications by omitting them
from his complaint. This misses the point of the trial court‘s observation, which is
that the elements of Park‘s claims do not depend on proof of any University
communications. No one disputes the University can submit evidence of
communications leading to the decision to deny tenure, but doing so does not
establish those communications, rather than the tenure denial decision itself, as the
―facts upon which the liability . . . is based.‖ (§ 425.16, subd. (b)(2).)
Communications disparaging Park, without any adverse employment action,
would not support a claim for employment discrimination, but an adverse
employment action, even without the prior communications, surely could.
Second, the University urges that its tenure decision and the
communications that led up to it are intertwined and inseparable. It bases this
argument on Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39
Cal.4th 192 and Kibler‘s progeny, which it contends establish that decisions and
the deliberations that underlie them are indistinguishable for anti-SLAPP
purposes.
3 Park‘s first claim is a traditional claim for discrimination based on national
origin. His second claim asserts in its entirety, ―By virtue of the foregoing, [the
University] has failed to provide Park with a workplace environment free of
discrimination.‖ Because neither party argues the claim for a discriminatory
workplace environment should be analyzed any differently for anti-SLAPP
purposes from the claim for discrimination in employment, we do not differentiate
between them.
13
Kibler lends no support. There, the plaintiff doctor sued a hospital and
various individual defendants for defamation and related torts. The trial court in
Kibler found, and we accepted for purposes of review, that these tort claims arose
from statements made in connection with a hospital peer review proceeding. The
only issue before us was whether, assuming this to be so, the peer review
proceeding was an ― ‗official proceeding‘ ‖ within the meaning of the anti-SLAPP
statute. (Kibler v. Northern Inyo County Local Hospital Dist., supra, 39 Cal.4th at
p. 198; see § 425.16, subd. (e)(2) [defining protected activity to include ―any
written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law‖ (italics added)].) That is, we took for
granted lower court findings as to what activity the tort claims arose from under
section 425.16, subdivision (b)(1), and then considered whether that activity
constituted protected activity under a particular portion of subdivision (e)‘s
statutory definition. We did not consider whether the hospital‘s peer review
decision and statements leading up to that decision were inseparable for purposes
of the arising from aspect of an anti-SLAPP motion, because we did not address
the arising from issue. (See Young v. Tri-City Healthcare Dist. (2012) 210
Cal.App.4th 35, 58 [correctly recognizing Kibler addressed only whether hospital
peer review proceedings can be ― ‗official proceedings,‘ ‖ and courts resolving
anti-SLAPP motions must still separately determine whether a given claim arises
from any protected activity].)
Applying our decision in Kibler, the Court of Appeal in Nesson v. Northern
Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65 concluded an anti-
SLAPP motion against the claims of a doctor who alleged discriminatory and
retaliatory termination of privileges was properly granted. The Nesson court
reasoned that under Kibler, a hospital‘s peer review proceedings are official
14
proceedings, and thus every aspect of those proceedings, including the decision to
impose discipline, is protected activity for anti-SLAPP purposes. (Nesson, at
pp. 78–79, 82–84.) Similarly, in DeCambre v. Rady Children’s Hospital-San
Diego (2015) 235 Cal.App.4th 1, the Court of Appeal concluded Kibler dictated
finding the allegedly discriminatory decision not to renew a doctor‘s contract to be
protected activity. The court correctly considered the elements of the plaintiff‘s
claims in order to identify what conduct underlay each cause of action. (E.g.,
DeCambre, at p. 22.) However, it also concluded, in reliance on Kibler, that every
part of the peer review process was protected activity. To the extent plaintiff‘s
claims included as an essential element her termination, and that termination was a
product of peer review, her claims arose from protected activity. (DeCambre, at
pp. 14–16.)
The University argues by analogy that all aspects of its tenure process,
including its ultimate decision, are inextricably intertwined protected activity, and
the Court of Appeal here agreed. But both Nesson and DeCambre overread
Kibler, which did not address whether every aspect of a hospital peer review
proceeding involves protected activity, but only whether statements in connection
with but outside the course of such a proceeding can qualify as ―statement[s] . . .
in connection with an issue under consideration‖ in an ―official proceeding.‖
(§ 425.16, subd. (e)(2).) Kibler does not stand for the proposition that disciplinary
decisions reached in a peer review process, as opposed to statements in connection
with that process, are protected. We disapprove Nesson v. Northern Inyo County
Local Hospital Dist., supra, 204 Cal.App.4th 65, and DeCambre v. Rady
Children’s Hospital-San Diego, supra, 235 Cal.App.4th 1, to the extent they
indicate otherwise.
In support of the argument for inseparability, the University also cites
Vergos v. McNeal (2007) 146 Cal.App.4th 1387. In Vergos, the plaintiff
15
complained of sexual harassment and filed an internal grievance, which was
denied. Plaintiff then sued both his public university employer and the individual
employee who had served as a hearing officer and denied his grievance. The civil
rights claim against the individual hearing officer expressly rested on her
― ‗hearing, processing, and deciding the grievances‘ ‖ (id. at p. 1391) as well as
the allegation the employer and officer had deprived him of a hearing before a
― ‗fair and impartial hearing officer‘ ‖ (id. at p. 1392). The Court of Appeal
concluded this claim arose from the officer‘s ―statements and communicative
conduct in handling plaintiff‘s grievance.‖ (Id. at p. 1394.) In turn, the hearing
officer‘s conduct of an internal grievance proceeding was protected activity
because it furthered employees‘ rights to petition for redress of harassment,
discrimination, and similar complaints. (Id. at pp. 1398–1399.)
Vergos does not assist the University. In Vergos, only the individual officer
filed an anti-SLAPP motion, and the court was not called on to decide whether any
of the claims against the employer defendant arose from protected activity.
Vergos does not stand for the proposition that a suit alleging an entity has made a
discriminatory decision necessarily also arises from any statements by individuals
that may precede that decision, or from the subsequent communication of the
decision that may follow. As the Vergos court observed, denying protection to the
hearing officer‘s participation in the process might chill employees‘ willingness to
serve and hamper the ability to afford harassed employees review of their
complaints. (Vergos v. McNeal, supra, 146 Cal.App.4th at pp. 1398–1399.)
Likewise, to deny protection to individuals weighing in on a public entity‘s
decision might chill participation from a range of voices desirous of offering input
on a matter of public importance. But no similar concerns attach to denying
protection for the ultimate decision itself, and none of the core purposes the
Legislature sought to promote when enacting the anti-SLAPP statute are furthered
16
by ignoring the distinction between a government entity‘s decisions and the
individual speech or petitioning that may contribute to them.4
The Court of Appeal found support from one other case, Tuszynska v.
Cunningham (2011) 199 Cal.App.4th 257, for the conclusion that a claim arising
from a decision inevitably arises from the communications leading to that
decision. The Tuszynska court concluded that, for anti-SLAPP purposes, a
discrimination suit alleging an attorney was denied case referrals because she was
a woman was necessarily based on both the referral decisions ―and, concomitantly,
communications defendants made in connection with making those decisions.‖
(Tuszynska, at p. 269.) To the extent Tuszynska v. Cunningham, supra, 199
Cal.App.4th 257 presupposes courts deciding anti-SLAPP motions cannot separate
an entity‘s decisions from the communications that give rise to them, or that they
give rise to, we disapprove it.
Third, the University contends that even if the tenure decision alone is
treated as the basis for this case, that decision is protected activity. The University
places principal reliance on Hunter v. CBS Broadcasting Inc. (2013) 221
Cal.App.4th 1510. There, the plaintiff sued over the defendant‘s allegedly
discriminatory refusal to hire him as a weather news anchor. The reporting of
news, whether in print or on air, is constitutionally protected free speech (Briscoe
4 We have described the anti-SLAPP statute as ―intended broadly to protect,
inter alia, direct petitioning of the government and petition-related statements and
writings.‖ (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at
p. 1120; see Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1264 (1991–1992
Reg. Sess.) as introduced Jan. 6, 1992, pp. 3–4 [highlighting the need to address
unmeritorious tort suits filed against private citizens and associations for
exercising their rights to seek changes in government policy].) These concerns are
promoted, not impaired, by differentiating between individual speech that
contributes to a public entity‘s decision and the public entity decision itself.
17
v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, 534–536), and Hunter
treats a news media organization‘s decision as to who shall report the news as an
act in furtherance of that protected speech (Hunter, at p. 1521).
The University argues that tenure decisions implicate the public interest as
much as decisions concerning who should appear in a news broadcast and thus are
equally entitled to protection. But this argument fails to appreciate the underlying
structure of the position accepted in Hunter and thus offers a mismatched
analogy. The defendant television station argued that (1) the station itself engaged
in speech on matters of public interest through the broadcast of news and weather
reports, and (2) the decision as to who should present that message was thus
conduct in furtherance of the station‘s protected speech on matters of public
interest, to wit, its news broadcasts. (See § 425.16, subd. (e)(4) [defining as
protected activity ―any other conduct in furtherance of the exercise of . . . the
constitutional right of free speech in connection with a public issue or an issue of
public interest‖]; Hunter v. CBS Broadcasting Inc., supra, 221 Cal.App.4th at
pp. 1518–1521.) Whether the hiring decision itself was a matter of any particular
public importance was immaterial. (See Hunter, at p. 1527 [―the proper inquiry is
not whether CBS‘s selection of a weather anchor was itself a matter of public
interest; the question is whether such conduct was ‗in connection with‘ a matter of
public interest. As Hunter concedes, weather reporting is [speech in connection
with] a matter of public interest.‖]; id. at p. 1527, fn. 3 [declining to consider the
significance of the hiring decision itself].)
To make a similar argument, the University would have had to explain how
the choice of faculty involved conduct in furtherance of University speech on an
identifiable matter of public interest. But the University has not developed or
preserved any such argument before us. It has not explained what University
expression on matters of public interest the retention or nonretention of this faculty
18
member might further, nor has it discussed the circumstances in which a court
ought to attribute the speech of an individual faculty member to the institution
with which he or she is affiliated. Whether the grant or denial of tenure to this
faculty member is, or is not, itself a matter of public interest has no bearing on the
relevant questions—whether the tenure decision furthers particular University
speech, and whether that speech is on a matter of public interest—and cannot
alone establish the tenure decision is protected activity under section 425.16,
subdivision (e)(4).
We have no occasion to consider the scope of free speech protection for
professors, the potential liberties at stake in a university‘s choice of faculty (cf.
University of Pennsylvania v. E.E.O.C. (1990) 493 U.S. 182, 195–198 & fn. 6;
Sweezy v. New Hampshire (1957) 354 U.S. 234, 262–263 (conc. opn. of
Frankfurter, J.)), or under what circumstances the protected speech of an
individual professor might be attributable to a private or public university for
either free speech or anti-SLAPP purposes. Nor do we express any opinion
concerning whether Hunter v. CBS Broadcasting Inc., supra, 221 Cal.App.4th
1510, itself was correctly decided. We hold simply that the assertion the
University‘s hiring decision is a matter of public interest does not suffice to bring
that decision within the scope of protected activity defined by section 425.16,
subdivision (e)(4).
Accordingly, the University has not carried its burden of showing ―the
defendant‘s conduct by which plaintiff claims to have been injured falls within one
of the four categories described in subdivision (e).‖ (Equilon Enterprises v.
Consumer Cause, Inc., supra, 29 Cal.4th at p. 66; see City of Cotati v. Cashman,
supra, 29 Cal.4th at p. 78.)
19
CONCLUSION
We reverse the judgment of the Court of Appeal and remand for further
proceedings not inconsistent with this opinion.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
20
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Park v. Board of Trustees of California State University
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 239 Cal.App.4th 1258Rehearing Granted
__________________________________________________________________________________
Opinion No. S229728
Date Filed: May 4, 2017
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Richard E. Rico
__________________________________________________________________________________
Counsel:
Towle, Denison, Smith & Maniscalco, Towle Denison & Maniscalco and Michael C. Denison for
Defendant and Appellant.
Joseph T. Francke and Steven J. André for Californians Aware, First Amendment Project, Penelope Canan,
Libertarian Law Council, Angie Morfin Vargas, City Watch, Inc., and Consumer Attorneys of California as
Amici Curiae on behalf of Defendant and Appellant.
Siegel & Yee, Jane E. Brunner and Alan S. Yee for Plaintiff and Respondent.
Davis Wright Tremaine, Thomas R. Burke, Nicolas A. Jampol and Diana Palacios for First Amendment
Coalition as Amicus Curiae on behalf of Plaintiff and Respondent.
Briggs Law Corporation, Anthony N. Kim and Cory J. Briggs for San Diegans for Open Government and
The Inland Oversight Committee as Amici Curiae on behalf of Plaintiff and Respondent.
Duchrow & Piano and David J. Duchrow for California Employment Lawyers Association as Amicus
Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael C. Denison
Towle Denison & Maniscalco
11111 Santa Monica Boulevard, Suite 330
Los Angeles, CA 90025
(310) 446-5445
Alan S. Yee
Siegel & Yee
499 14th Street, Suite 300
Oakland, CA 94612
(510) 839-1200