Symmonds v. Mahoney

Filed 2/1/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
GLENN SYMMONDS et al., B283529
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC620563)
v.
EDWARD JOSEPH MAHONEY
et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles, Rafael A. Ongkeko, Judge. Reversed.
Fox Rothschild, Lincoln D. Bandlow, Sadaf Bathaee,
Rom Bar-Nissim, and Laurie Baddon for Defendants and
Appellants.
Bohm Law Group, Lawrance A. Bohm, Zane E. Hilton,
Bradley J. Mancuso, and Brandon P. Ortiz for Plaintiffs and
Respondents.
_________________________
Defendants Edward Joseph Mahoney, also known as
Eddie Money, and Eddie Money Entertainment, Inc. (collectively,
defendants)1 appeal from the trial court’s order denying a special
motion to strike under Code of Civil Procedure2 section 425.16,
the anti-SLAPP (Strategic Lawsuit Against Public Participation)
statute.
Mahoney is a singer and songwriter who performs in
concerts across the country. In 2015 he terminated his drummer,
plaintiff and respondent Glenn Symmonds, who subsequently
sued defendants for discrimination on the basis of age, disability,
and medical condition. Defendants filed an anti-SLAPP motion
arguing that Mahoney’s decision as to which musicians
performed with him was an act in furtherance of the exercise of
his constitutional right of free speech in connection with an issue
of public interest, and thus protected under section 425.16.
The trial court denied the motion, finding that Symmonds’
cause of action arose from defendants’ discriminatory conduct,
not the decision to terminate him, and thus Symmonds’ claim did
not implicate Mahoney’s free speech rights.
We hold that defendants met their burden to establish that
Mahoney’s decision to terminate Symmonds was protected
conduct. Accordingly, we reverse and remand so the trial court
may conduct the second step of the anti-SLAPP analysis and
determine whether Symmonds has demonstrated a probability of
1The operative pleading in this case alleged that
Eddie Money Entertainment, Inc. is wholly owned and controlled
by Mahoney and “exists as [Mahoney’s] mere alter ego.”
2Undesignated statutory citations are to the Code of Civil
Procedure.
2
prevailing on the merits of his claim. We deny Symmonds’
requests for attorney fees and sanctions.
BACKGROUND
A. Symmonds’ allegations
On May 20, 2016, Symmonds and his coplaintiff,
Tami Landrum, filed their first amended complaint (FAC), the
operative pleading in this case. The FAC asserted 22 causes of
action; only the first, for discrimination based upon age,
disability, and medical condition in violation of the California
Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900
et seq.), is at issue in this appeal. We thus limit our summary of
the allegations to those underlying that claim. The first cause of
action was asserted by Symmonds alone against all defendants;
this appeal does not address any of the causes of action asserted
by Landrum.
The FAC alleged the following: Mahoney is a “rock-and-
roll” singer and songwriter “best known for the late ‘70s hits
‘Baby Hold On’ and ‘Two Tickets to Paradise.’ ” Mahoney still
“perform[s] at concerts across the country.”
Mahoney hired Symmonds in 1974 as part of his band, an
employment relationship that lasted “off and on for
approximately 41 years.” Symmonds performed as a drummer
for Mahoney during live concerts and in studio, and performed
“before shows with [Mahoney’s] ‘unplugged’ band, for which he
received separate compensation.” He also managed and sold
band merchandise, such as t-shirts, compact discs, and posters, at
a booth following performances.
At some point Symmonds injured his back, which made it
difficult to lift heavy boxes. He was also diagnosed with cancer,
3
and had to wear diapers during his treatment because of urinary
incontinence.3 During concerts Mahoney would joke about
Symmonds’ condition to the audience, referring to Symmonds as
“ ‘Chemo the Drummer’ ” (a reference to chemotherapy), and
stating that the concert tour was sponsored by “ ‘Depends,’ ”
which Symmonds alleged is a brand of “diaper used by people
with urinary incontinence.”
Because of the chemotherapy, Symmonds was “dehydrated,
sweaty, and exhausted after shows,” and needed time to change
out of his “soiled undergarments.” Accordingly, “[o]n numerous
occasions” he asked Mahoney to allow him to take a short break
before working in the merchandise booth. Symmonds alleged
that Mahoney never “engage[d] in an interactive process to
ascertain ways to reasonably accommodate Mr. Symmonds’
disability.”
Sometime in 2015 Mahoney laid off the entire band.
Months later, Mahoney rehired the band, but not Symmonds.
Symmonds believed his age (he was approximately 61 years old,
disabilities, and medical condition (i.e., his cancer and back
surgery) were “substantial motivating reasons for his
termination.” Symmonds alleged that the drummer hired to
replace him was younger and not disabled, but “less skilled and
qualified” than Symmonds.
In the FAC’s first cause of action, Symmonds alleged that
Mahoney’s conduct constituted unlawful discrimination under
FEHA. “Specifically, [Mahoney] denied [Symmonds] reasonable
3 The FAC did not allege the dates of the back injury or
cancer diagnosis. The original complaint filed in this action,
however, alleged that Symmonds received his cancer diagnosis in
April 2013, and underwent surgery for his back in January 2014.
4
accommodations, harassed [Symmonds], and wrongfully
terminated [Symmonds] on the basis of his age and disability.”
B. Defendants’ anti-SLAPP motion
On June 29, 2016, defendants filed a special motion to
strike Symmonds’ first cause of action under section 425.16.
Defendants argued that under the First Amendment to the
United States Constitution, Mahoney had the right to select
whomever he wished to perform music with him, and Symmonds’
first cause of action implicated that right. Defendants argued
that Symmonds’ claim arose in connection with an issue of public
interest given the media’s and the public’s interest in Mahoney
and his music. In support, Mahoney submitted a declaration
stating that he had written and performed several hit songs, sold
millions of records, had more than 300,000 followers on Facebook,
and had appeared in a television commercial referencing one of
his songs in 2012. Defendants also submitted news articles dated
between 2003 and 2016 concerning Mahoney and his music.
Defendants further argued that Symmonds would be
unable to produce evidence demonstrating a probability of
prevailing on the merits. Defendants asserted that Mahoney’s
decision to lay off the band was motivated by his desire to
perform with his adult children during the summer of 2015.
Defendants claimed that Symmonds reacted negatively to that
decision by attempting to discredit Mahoney with fans and
concert promoters, and Mahoney accordingly chose not to rehire
him.
Defendants disputed the allegations of age discrimination,
arguing that Mahoney was older than Symmonds and that the
band members he rehired after the summer of 2015 were in their
50’s. Defendants also disputed the allegations of discrimination
5
based on Symmonds’ cancer, arguing that Mahoney made efforts
to raise money for Symmonds’ cancer treatment and for cancer
charities in general. Defendants claimed Mahoney’s jokes about
“Depends” were a reference to his own age, and pre-dated
Symmonds’ cancer diagnosis. Defendants asserted that the
“Chemo the Drummer” reference was intended as a humorous
way to encourage audience members to purchase t-shirts sold by
Symmonds reading “ ‘Beat Cancer Like a Drum.’ ”
Symmonds opposed defendants’ motion, arguing that his
first cause of action “ar[ose] from a discriminatory animus
towards [Symmonds] that was ongoing long before [Mahoney’s]
decision regarding who played in his band,” and therefore was
not subject to section 425.16. Symmonds also disputed
defendants’ characterization of events and put forth evidence
purportedly undercutting Mahoney’s explanations for his
conduct.
Defendants filed a reply along with a list of 72 objections to
Symmonds’ declaration in support of his opposition.
C. The trial court’s ruling
The trial court denied defendants’ motion in a written
order. The trial court listed the allegations from the FAC
pertaining to age and disability discrimination, specifically
Mahoney’s jokes about “Depends” and “Chemo the Drummer,”
Mahoney’s failure to engage in an interactive process to
reasonably accommodate Symmonds’ disability, and Mahoney’s
decision to fire Symmonds. In light of these allegations, the
trial court found that Symmonds’ first cause of action was “based
on [Mahoney’s] alleged conduct leading up to the alleged firing of
Symmonds, not [Mahoney’s] purported decision regarding who
plays music in his band.”
6
While acknowledging that the first cause of action included
allegations pertaining to adverse employment actions such as
the termination, the trial court found that the cause of action was
“not based on this overarching allegation, but . . . is based upon
numerous detailed allegations regarding [Mahoney’s] conduct in
the years and months preceding his decision to choose other
musicians over Symmonds.” The trial court cited Wilson v. Cable
News Network, Inc. (2016) 6 Cal.App.5th 822 (Wilson), review
granted March 1, 2017, S239686, a decision by another panel in
this division, for the proposition that the gravamen of a cause of
action for employment discrimination is the “ ‘allegedly
discriminatory and retaliatory conduct against [the plaintiff], not
the particular manifestations of the discrimination and
retaliation, such as . . . firing him.’ ”
The trial court, again quoting Wilson, concluded that
“[w]hile it is arguable . . . that an employer’s choice of who is
selected to work on a particular show or project in any particular
moment in time is an act in furtherance of the employer’s
constitutionally protected free speech activity, such choice ‘does
not mean that defendants’ alleged discrimination and retaliation
against plaintiff . . . was also an act in furtherance of its speech
rights.’ ” (Ellipsis in original.)
Having concluded that Symmonds’ first cause of action did
not implicate conduct protected under section 425.16, the trial
court did not reach the question of Symmonds’ probability of
prevailing on the merits and did not address defendants’
objections to Symmonds’ declaration.
Defendants timely appealed.
7
DISCUSSION
Under the anti-SLAPP statute, “[a] cause of action against
a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) The statute protects written and oral
statements in various contexts, as well as “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.” (Id., subd. (e).)
Section 425.16 instructs that its provisions “shall be construed
broadly.” (Id., subd. (a).)
“Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) The defendant’s
burden “is not an onerous one,” requiring only a “prima facie
showing that the plaintiff ’s claims arise from the defendant’s
constitutionally protected free speech or petition rights” in
connection with a public issue or an issue of public interest.
(Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP
(2017) 18 Cal.App.5th 95, 112.) “ ‘ “[A] court must generally
presume the validity of the claimed constitutional right in the
first step of the anti-SLAPP analysis.” ’ ” (Ibid., italics omitted.)
“If the defendant makes the required showing [at the first
step], the burden shifts to the plaintiff to demonstrate the
merit of the claim by establishing a probability of success.”
8
(Baral, supra, 1 Cal.5th at p. 384.) “ ‘[I]f the defendant does not
meet its burden on the first step, the court should deny the
motion and need not address the second step.’ ” (Okorie v. Los
Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 586.)
An anti-SLAPP motion need not be directed at a cause of
action in its entirety, but “may be used to attack parts of a count
as pleaded.” (Baral, supra, 1 Cal.5th at p. 393.) Thus, when a
cause of action is supported by allegations of both protected and
unprotected activity, the anti-SLAPP statute applies to the
former but does not reach the latter. (Id. at p. 382.) “[C]ourts
may rule on plaintiffs’ specific claims of protected activity,”
regardless of how they are framed or grouped in the pleading.
(Id. at p. 393; see Sheley v. Harrop (2017) 9 Cal.App.5th 1147,
1164−1165.)
We review the grant or denial of an anti-SLAPP motion
de novo. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067 (Park).) “We exercise independent
judgment in determining whether, based on our own review of
the record, the challenged claims arise from protected activity.
[Citations.] In addition to the pleadings, we may consider
affidavits concerning the facts upon which liability is based.”
(Ibid.)
A. Untimeliness
Symmonds argues that defendants’ special motion to strike
was untimely. We reject this argument.
Section 425.16, subdivision (f) states that “[t]he special
motion may be filed within 60 days of the service of the complaint
or, in the court’s discretion, at any later time upon terms it deems
proper.” “ ‘An amended complaint reopens the time to file an
anti-SLAPP motion without court permission only if the amended
9
complaint pleads new causes of action that could not have been
the target of a prior anti-SLAPP motion, or adds new allegations
that make previously pleaded causes of action subject to an anti-
SLAPP motion.’ ” (Newport Harbor Ventures, LLC v. Morris
Cerullo World Evangelism (2018) 4 Cal.5th 637, 641, 646.)
The original complaint in this action was filed on
October 19, 2015, and included causes of action for age and
disability discrimination and wrongful termination, similar to the
FAC. Symmonds contends that defendants therefore should have
brought their anti-SLAPP motion within 60 days of the filing of
the original complaint, not the FAC, and the filing in June 2016
was untimely.
The record does not indicate that Symmonds challenged the
timeliness of the motion in the trial court, and the trial court did
not expressly address the issue. We may assume, however, that
the trial court implicitly exercised its discretion to allow filing of
the motion despite the expiration of the 60-day deadline. (See
425.16, subd. (f).)4 To the extent Symmonds believes this was in
error, his remedy was to file his own notice of appeal, which he
did not do. (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 665
[“ ‘ “ ‘a respondent who has not appealed from the judgment may
not urge error on appeal’ ” ’ ”].) Even were we to reach the
merits, Symmonds presents no argument in his appellate brief
that the trial court abused its discretion.
4 A party’s request is not a prerequisite to a trial court’s
exercise of its discretion to hear an otherwise untimely
anti-SLAPP motion. (§ 425.16, subd. (f); Chitsazzadeh v. Kramer
& Kaslow (2011) 199 Cal.App.4th 676, 684.)
10
B. The trial court erred by denying defendants’ special
motion to strike at the first step of anti-SLAPP
analysis
Again, to prevail at the first step of anti-SLAPP analysis,
“the defendant must establish that the challenged claim arises
from activity protected by section 425.16.” (Baral, supra,
1 Cal.5th at p. 384.) Thus, in reviewing the trial court’s denial of
defendants’ special motion to strike, we must address two
questions: (1) From what activity does Symmonds’ first cause of
action arise, and (2) is that activity protected by section 425.16?
Defendants argue that the activity underlying the first
cause of action was Mahoney’s decision to terminate Symmonds,
a decision Mahoney contends was in furtherance of his free
speech rights in connection with an issue of public interest. The
trial court found, and Symmonds argues on appeal, that the
activity underlying the cause of action was Mahoney’s
discriminatory conduct, not the termination itself, and that
conduct was not in furtherance of Mahoney’s free speech rights.
For the reasons that follow, we agree with defendants. We
begin with the second question, and explain why Mahoney’s
decision to terminate Symmonds was protected activity. We then
explain why we conclude that Symmonds’ first cause of action
arose from that protected activity.
11
1. Mahoney’s decision to terminate Symmonds as
drummer was protected conduct under the
anti-SLAPP statute
a. Mahoney’s selection of musicians to
perform with him was an act in
furtherance of the exercise of the right of
free speech
“Music, as a form of expression and communication, is
protected under the First Amendment.” (Ward v. Rock Against
Racism (1989) 491 U.S. 781, 790; see also McCollum v. CBS, Inc.
(1988) 202 Cal.App.3d 989, 999 [“First Amendment guarantees of
freedom of speech and expression extend to all artistic and
literary expression,” including “music” and “concerts”].) Courts
have held that acts that “advance or assist” the creation and
performance of artistic works are acts in furtherance of the right
of free speech for anti-SLAPP purposes. (Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 (Tamkin)
[writing, casting, and broadcasting popular television show are
acts in furtherance of free speech].) A singer’s selection of the
musicians that play with him both advances and assists the
performance of the music, and therefore is an act in furtherance
of his exercise of the right of free speech.
Our conclusion is supported by Hunter v. CBS
Broadcasting Inc. (2013) 221 Cal.App.4th 1510 (Hunter), an
opinion by our colleagues in Division Seven. In Hunter, the
plaintiff filed an employment discrimination suit alleging that
two television stations owned by the defendant had “refused to
hire him as a weather news anchor because of his gender and
age.” (Id. at p. 1513.) The defendant argued that its “selection of
a weather anchor . . . qualifies as an act in furtherance of the
12
exercise of free speech,” protected under the first prong of
section 425.16. (Id. at p. 1521.) The court agreed. (Ibid.)
The court noted that previous cases had recognized that both
reporting the news and creating a television show were
“ ‘exercise[s] of free speech.’ ” (Ibid., alteration in original.) The
defendant’s selections of weather anchors “were essentially
casting decisions regarding who was to report the news on a local
television newscast,” and therefore “ ‘helped advance or
assist’ both forms of First Amendment expression.” (Ibid.)
Here, selection of a drummer is analogous to a “casting
decision[ ]” regarding who is to perform music during a concert
or studio performance, and thus is “an act in furtherance of
the exercise of free speech.” (Hunter, supra, 221 Cal.App.4th
at p. 1521).
Symmonds cites cases, including Wilson, that criticized
Hunter for ignoring the employer’s allegedly discriminatory
motive when assessing whether the employer’s conduct was
protected activity. (See Nam v. Regents of University of
California (2016) 1 Cal.App.5th 1176, 1188-1189 (Nam)
[disagreeing with Hunter’s conclusion that “the employer’s motive
to discriminate was irrelevant in determining whether the
defendant met its threshold burden to prove the conduct
arose from protected activity”]; Wilson, supra, 6 Cal.App.5th
at pp. 834-835 [same, citing Nam]).
In Nam, a hospital terminated a medical resident following
an investigation and disciplinary proceedings. (Nam, supra,
1 Cal.App.5th at pp. 1181-1184.) The resident sued, claiming she
was terminated for discriminatory and retaliatory reasons after
she rebuffed a more senior doctor’s sexual advances and
complained about patient care and safety issues. (Id. at p. 1184.)
13
The Third District Court of Appeal accepted the defendants’
position that the disciplinary proceedings were protected as a
“proceeding authorized by law” under the anti-SLAPP statute
(id. at pp. 1186-1187), but rejected the argument that the
discrimination suit was therefore subject to that statute: “[T]he
anti-SLAPP statute was not intended to allow an employer to use
a protected activity as the means to discriminate or retaliate and
thereafter capitalize on the subterfuge by bringing an anti-
SLAPP motion to strike the complaint. In that case, the conduct
giving rise to the claim is discrimination and does not arise from
the exercise of free speech or petition.” (Id. at pp. 1190-1191.)5
In Wilson, a television news producer sued the network
that formerly employed him and other related corporate
defendants, alleging “employment discrimination on the basis of
age, race, color, ancestry, and association with a person with a
disability.”6 (Wilson, supra, 6 Cal.App.5th at pp. 827, 829.) A
majority of the appellate panel reversed the trial court’s grant of
the defendants’ anti-SLAPP motion. (Id. at p. 827.) The majority
acknowledged that “a producer or writer shapes the way in which
news is reported. Thus, defendants’ choice of who works as a
5 The Supreme Court’s later decision in Park clarified that
the fact that a termination results from an official proceeding (in
that case a tenure review of a university professor) does not make
the termination itself a protected act under section 425.16.
(Park, supra, 2 Cal.5th at pp. 1068-1070.) We observe that had
the court in Nam had the benefit of our Supreme Court’s ruling
in Park, it may have decided Nam in the plaintiff ’s favor on that
basis without addressing the issue of discriminatory motive at
all.
6 The producer claimed that his wife was disabled on the
basis of infertility. (Wilson, supra, 6 Cal.App.5th at p. 828.)
14
producer or writer is arguably an act in furtherance of
defendants’ right of free speech.” (Id. at p. 834.) “But,” the
majority continued, “this does not mean that defendants’ alleged
discrimination and retaliation against plaintiff—a long-term,
well-reviewed existing employee that CNN had already deemed
qualified and acceptable to shape its news reporting—was also an
act in furtherance of its speech rights.” (Ibid.) The majority
“reject[ed] defendants’ characterization of their allegedly
discriminatory and retaliatory conduct as mere ‘staffing
decisions’ in furtherance of their free speech rights to determine
who shapes the way they present news. The press has no special
immunity from generally applicable laws.” (Id. at p. 836.)
We respectfully suggest that Nam and Wilson are in
tension with our Supreme Court’s decision in Navellier v. Sletten
(2002) 29 Cal.4th 82, which held that the alleged wrongfulness of
a defendant’s conduct is an issue for the second step of anti-
SLAPP analysis, not the first. In Navellier, the plaintiffs alleged
that defendant Sletten had breached a release he had signed
by filing counterclaims against them in a federal lawsuit.
(Id. at p. 87.) The plaintiffs and a dissenting justice argued that,
because Sletten had waived his right to petition the courts by
signing the release, his petitioning was not a “ ‘valid exercise’ ”
of his First Amendment rights subject to the protections of the
anti-SLAPP statute. (Id. at p. 94; see id. at p. 97 (dis. opn.
of Brown, J.).)
The Navellier majority rejected this argument. “That the
Legislature expressed a concern in the [anti-SLAPP] statute’s
preamble with lawsuits that chill the valid exercise of
First Amendment rights does not mean that a court may read a
separate proof-of-validity requirement into the operative sections
15
of the statute. [Citations.] Rather, any ‘claimed illegitimacy of
the defendant’s acts is an issue which the plaintiff must raise and
support in the context of the discharge of the plaintiff ’s
[secondary] burden to provide a prima facie showing of the merits
of the plaintiff ’s case.’ ” (Navellier, supra, 29 Cal.4th at p. 94,
final alteration in original.) Challenging the lawfulness of a
defendant’s conduct at the first step of the analysis “ ‘confuses the
threshold question of whether the SLAPP statute [potentially]
applies with the question whether [an opposing plaintiff ] has
established a probability of success on the merits.’ ” (Ibid.) “ ‘The
Legislature did not intend that in order to invoke the special
motion to strike the defendant must first establish her actions
are constitutionally protected under the First Amendment as a
matter of law. If this were the case then the [secondary] inquiry
as to whether the plaintiff has established a probability of
success would be superfluous.’ ” (Id. at pp. 94-95, alteration in
original.)
Hunter relied on Navellier to reject the plaintiff ’s argument
that his claim was based on the defendant’s discriminatory
criteria in selecting weather anchors, not the selection decision
itself. (Hunter, supra, 221 Cal.App.4th at pp. 1521-1522.) The
court stated that the plaintiff ’s argument “confuses the conduct
underlying [the plaintiff ’s] claim—[the defendant’s] employment
decisions—with the purportedly unlawful motive underlying that
conduct—employment discrimination.” (Id. at p. 1522.)
We agree with Hunter’s reasoning in light of Navellier. To
the extent that Nam and Wilson suggest that a defendant’s
discriminatory motive negates protections that otherwise would
apply to the defendant’s conduct under section 425.16, those
decisions assessed the “ ‘claimed illegitimacy of the defendant’s
16
acts’ ” at the first stage of anti-SLAPP analysis, in contravention
of Navellier. (Navellier, supra, 29 Cal.4th at p. 94.) We
respectfully decline to follow them.
b. Mahoney’s selection of musicians to
perform with him was an act in connection
with an issue of public interest
We agree with defendants that Mahoney’s selection of a
drummer was conduct “in connection with . . . an issue of public
interest.” (§ 425.16, subd. (e)(4).) Courts have defined “an issue
of public interest” broadly as “ ‘any issue in which the public is
interested.’ ” (Tamkin, supra, 193 Cal.App.4th at p. 143, italics
omitted.) “ ‘[T]he issue need not be “significant” to be protected
by the anti-SLAPP statute—it is enough that it is one in which
the public takes an interest.’ ” (Ibid.)
Tamkin concluded that “the creation and broadcasting” of a
television show was “an issue of public interest” as demonstrated
“by the posting of the casting synopses [for the episode] on
various Web sites and the ratings for the episode” (Tamkin,
supra, 193 Cal.App4th at p. 143), which indicated it was “the
most watched show that night” (id. at p. 138). In Daniel v.
Wayans (2017) 8 Cal.App.5th 367 (Daniel), review granted May
10, 2017, S240704,7 this court held that the creation of a comedy
film was an issue of public interest given “[t]he longevity and
breadth” of the starring actor and co-writer’s career, as
demonstrated by the many television shows and films in which
he had acted or had written. (Id. at p. 386.)
7 The Supreme Court deferred further action in Daniel
pending resolution of the Wilson appeal. (See 7/12/2017 docket
entry, S240704.)
17
Here, defendants have made a prima facie showing
sufficient to establish that Mahoney’s music and concerts were of
interest to the public. Mahoney’s declaration put forth evidence
that he had sold millions of records and had hundreds of
thousands of people following him on social media. Defendants
also submitted news articles from different media outlets dated
as recently as 2016 discussing Mahoney and his music, including
the concert tour in which Mahoney performed with his children
and from which he excluded Symmonds. Moreover, the FAC
itself alleged that Mahoney “continue[d] to perform at concerts
across the country,” indicating that Mahoney’s music and
performances were of interest to the public.
In sum, we conclude that Mahoney’s decision to terminate
Symmonds and replace him with another drummer constituted
protected conduct for purposes of the first step of anti-SLAPP
analysis.
Symmonds notes that he was not only Mahoney’s drummer,
but also worked for him as merchandise manager and a pre-show
performer. Symmonds contends that “[i]n no way would these
other jobs be considered ‘protected speech.’ ” Symmonds’ loss of
those additional positions, however, stemmed from the decision to
terminate him as drummer; Symmonds does not allege that
Mahoney made separate decisions as to each position, just that
Mahoney laid Symmonds off with the rest of the band and then
declined to rehire him. In other words, Symmonds’ termination
as merchandise manager and pre-show performer was derivative
of, and inseparable from, the decision to terminate him as
drummer. Thus, even if some of Symmonds’ work for Mahoney
had no connection to Mahoney’s free speech rights (an issue we
do not decide), it does not affect our conclusion that the decision
18
to terminate Symmonds implicated those rights for anti-SLAPP
purposes.
2. Symmonds’ first cause of action arose from
Mahoney’s decision to terminate him
We further conclude that Symmonds’ first cause of action
arose from Mahoney’s decision to terminate him. “A claim arises
from protected activity when that activity underlies or forms the
basis for the claim.” (Park, supra, 2 Cal.5th at p. 1062.)
“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.’ ” (Id. at p. 1063.) “[I]n ruling on an anti-
SLAPP motion, courts should consider the elements of the
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.” (Ibid.)
If “specific elements” of a plaintiff ’s claims “depend[ ] upon the
defendant’s protected activity,” those claims arise from that
protected activity. (See id. at p. 1064.)
Symmonds’ employment discrimination claim required him
to prove the following elements: “ ‘(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.’ ” (Park, supra,
2 Cal.5th at pp. 1067-1068). Here, the allegation that Mahoney
fired Symmonds supplied the third element, the “ ‘adverse
employment action, such as termination.’ ” (Id. at p. 1067.) As
we have discussed, the termination was conduct in furtherance of
the First Amendment; thus, under the analysis outlined in Park,
19
Symmonds’ claim arose from that protected conduct because the
conduct supplied one of the elements of the claim.
The trial court, relying on Wilson, reached the opposite
conclusion, finding that Symmonds’ claim was not based on the
termination, but on Mahoney’s allegedly discriminatory conduct
preceding the termination. Wilson’s reasoning, however, conflicts
with the Supreme Court’s later decision in Park. Wilson held
that “the gravamen of plaintiff ’s employment-related causes of
action was defendants’ allegedly discriminatory and retaliatory
conduct against him, not the particular manifestations of the
discrimination and retaliation, such as denying promotions,
assigning him menial tasks, and firing him.” (Wilson, supra,
6 Cal.App.5th at p. 836.) The Wilson majority reasoned that
“firing, failure to promote, demotion, etc.” of an at-will employee
do not constitute actionable breaches of duty, and therefore the
news producer’s claim necessarily was based not on the adverse
employment actions, but on the discrimination and retaliation
underlying them: “Absent these ‘motivations,’ plaintiff ’s
employment-related claims would not state a cause of action.”
(Id. at p. 835.) Thus, “[d]iscrimination and retaliation are not
simply motivations for defendants’ conduct, they are defendants’
conduct.” (Ibid.)
The Wilson majority was correct that the plaintiff news
producer’s cause of action depended on his allegations of
discrimination and could not stand in their absence. A plaintiff
asserting employment discrimination, however, must also allege
an adverse employment action. (Park, supra, 2 Cal.5th at
pp. 1067-1068.) To the extent that adverse employment action is
an act in furtherance of the employer’s free speech rights in
connection with an issue of public interest, therefore, under Park
20
the employment discrimination claim necessarily arises from
protected conduct. The discrimination cannot be considered
separately from the adverse employment action for anti-SLAPP
purposes, as the Wilson majority did.
In defense of the trial court’s ruling, Symmonds also cites
Bonni v. St. Joseph Health System (2017) 13 Cal.App.5th 851(Bonni), review granted November 1, 2017, S244148, a decision
by the Fourth District Court of Appeal involving a surgeon’s
claim of whistleblower retaliation. (Id. at p. 854.) Similar to
Wilson, Bonni held that the suit was not subject to the anti-
SLAPP statute because “the basis for a [whistleblower]
retaliation claim . . . is the retaliatory purpose or motive for the
adverse action, not the adverse action itself.” (Bonni, at p. 861.)
Again, in light of Park we cannot agree that an employment
discrimination claim does not arise from the adverse employment
action when that action is a necessary element of the cause of
action.
In so concluding we do not suggest that employment
decisions as a general matter are acts in furtherance of the right
to petition or free speech for anti-SLAPP purposes. For example,
in Park, the Supreme Court first rejected the argument that a
university’s tenure decision was protected because the process
that led to it was communicative. (Park, supra, 2 Cal.5th at
pp. 1068-1070.) The court also rejected the university’s
argument, based on Hunter, that the tenure decision itself
“implicate[d] the public interest as much as decisions concerning
who should appear in a news broadcast and thus are equally
entitled to protection.” (Park, at p. 1071.) The court called this a
“mismatched analogy” because, unlike the defendant in Hunter,
the university had failed to “explain how the choice of faculty
21
involved conduct in furtherance of University speech on an
identifiable matter of public interest. . . . It has not explained
what University expression on matters of public interest the
retention or nonretention of this faculty member might further.”
(Park, at p. 1072.) Park illustrates that, irrespective of motive, a
cause of action based on an adverse employment decision is not
subject to the anti-SLAPP statute unless the decision itself
implicates rights protected under section 425.16.8
Here, as we have explained, Mahoney’s decision to
terminate Symmonds or, put another way, not to have Symmonds
perform music with him, did implicate Mahoney’s free speech
rights. Thus, this case, unlike Park, presents a circumstance in
which the adverse employment action itself is conduct within the
purview of the anti-SLAPP statute. (See Rall v. Tribune 365 LLC
(Jan. 17, 2019, B284566) __ Cal.App.5th __ [2019 Cal.App.Lexis
52 *31-33] [blogger’s wrongful termination claim against
newspaper arose from newspaper’s protected activity of choosing
not to publish blogger’s work].) The trial court erred in finding
that defendants had not met their burden at the first step of anti-
SLAPP analysis.
As Justice Chin stated in his concurrence in Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, a sexual
harassment case brought by a writer’s assistant on a popular
television program, “[b]alancing the compelling need to protect
employees from sexual harassment with free speech rights can, in
8 The Court in Park declined to express an opinion as to
whether Hunter was correctly decided, concluding only that the
university had failed to present an argument analogous to that
accepted by the court in Hunter. (Park, supra, 2 Cal.5th at
p. 1072.)
22
some contexts, present very difficult questions.” (Id. at p. 296
(conc. opn. of Chin, J.).) The same can be said for cases like this
one, in which antidiscrimination protections run up against an
employer’s free speech rights. As Hunter, Nam, Wilson, and
Bonni demonstrate, reasonable minds may differ on the proper
resolution. The Supreme Court has granted review in both
Wilson and Bonni, so further guidance may be forthcoming.
Until the Supreme Court speaks definitively, however, we are
bound by Navellier and Park, which mandate that we reverse the
trial court.
C. On remand, the trial court should determine
whether Symmonds has demonstrated a probability
of prevailing on the merits of his claim
As for the second step of the anti-SLAPP analysis,
defendants argue that Symmonds cannot show a probability of
prevailing on the merits of his claim because Symmonds has
failed to put forth admissible evidence establishing that Mahoney
terminated him for discriminatory reasons. Defendants also
point to their own evidence submitted in support of their anti-
SLAPP motion, which they claim establishes that Mahoney
terminated Symmonds for legitimate reasons. Symmonds argues
that he put forth sufficient evidence to meet his prima facie
burden.
Because the trial court denied defendants’ anti-SLAPP
motion at the first step of the analysis, it did not address whether
Symmonds met his burden under the second step, nor did it rule
on defendants’ objections or the admissibility of the parties’
evidence. Under similar circumstances, the court in Hunter held
“the more prudent course is to remand the matter to the trial
court” to conduct the second step analysis in the first instance.
23
(Hunter, supra, 221 Cal.App.4th at p. 1527.) We follow that
course here.
D. Defendants do not challenge the trial court’s
findings as to the other allegations of misconduct
underlying the first cause of action
As the trial court correctly noted, and Symmonds reiterates
on appeal, Symmonds’ first cause of action was not based solely
on his termination, but also on allegations of harassment and
failure to accommodate Symmonds’ disability. Defendants did
not direct their anti-SLAPP motion at those additional
allegations. (See Baral, supra, 1 Cal.5th at p. 393 [anti-SLAPP
motion “may be used to attack parts of a count as pleaded”],
italics added.) On appeal, defendants characterize those
allegations as “conduct . . . prior to the adverse employment
action,” that is, the termination. (Italics and boldface omitted.)
Both harassment and failure to accommodate a disability,
however, constitute unlawful employment practices in their own
right. (See Gov. Code, § 12940, subd. (j)(1) [unlawful to harass an
employee on basis of, among other things, age, disability, and
medical condition]; id., subd. (m)(1) [unlawful to fail to make
reasonable accommodation for an employee’s known disability].)
Defendants make no argument on appeal, nor did they in the
trial court, that those independent claims implicate rights
protected under section 425.16; indeed, in their reply in support
of the special motion to strike, they characterized the allegations
of conduct prior to the firing as “unprotected activity” for
anti-SLAPP purposes.
Given the absence of any argument from defendants that
the allegations of harassment and failure to accommodate a
disability implicate protected activity, on remand the trial court
24
should disregard those allegations when conducting its anti-
SLAPP analysis, except insofar as they may be pertinent to
assessing the probability of Symmonds’ prevailing on his claim
that Mahoney terminated him for unlawfully discriminatory
reasons. (See Baral, supra, 1 Cal.5th at p. 396.) We express no
opinion as to whether those allegations would be subject to the
anti-SLAPP statute had defendants so argued, nor do we express
an opinion as to whether they are sufficient to plead a cause of
action.
E. Symmonds’ request for sanctions is procedurally
defective and lacks merit
Symmonds requests that we “make an affirmative
determination” that defendants’ special motion to strike “was
frivolous or undertaken solely to cause unnecessary delay,” thus
entitling Symmonds to costs and reasonable attorney fees under
section 425.16, subdivision (c)(1). Symmonds cites no authority
for the proposition that an appellate court may make that
determination in the first instance. The trial court may make
such a determination, if appropriate, upon remand.
Symmonds also requests that we impose sanctions on
defendants for filing their appeal, which he asserts was
“frivolous” and “solely for the purpose of causing delay.”
Symmonds’ request is procedurally improper. Under
California Rules of Court, rule 8.276(b)(1), a request for sanctions
on appeal must be raised in a separate motion; “[s]anctions
cannot be sought in the respondent’s brief.” (Cowan v. Krayzman
(2011) 196 Cal.App.4th 907, 919.) Symmonds also has failed to
“include a declaration supporting the amount of any monetary
sanction sought.” (Cal. Rules of Court, rule 8.276(b)(1).)
Regardless, defendants’ appeal clearly has merit given our
25
reversal of the trial court’s order. Symmonds’ request for
sanctions is denied.
DISPOSITION
The trial court’s order denying defendants’ special motion
to strike is reversed. The matter is remanded to the trial court
for further proceedings consistent with this opinion. Defendants
are awarded their costs on appeal.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
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