Hastings College Conservation Com. v. Faigman

Filed 6/5/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
HASTINGS COLLEGE
CONSERVATION COMMITTEE et
al., A166898
Plaintiffs and Respondents,
v.
(City & County of San Francisco
DAVID FAIGMAN et al., Super. Ct. No. CGC-22-602149)
Defendants and Appellants.
On January 1, 2023, Assembly Bill No. 1936 (2021–2022 Reg. Sess.)
(AB 1936) changed the name of what was formerly known as “Hastings
College of the Law” to “College of the Law, San Francisco” (College).
Plaintiffs and respondents Hastings College Conservation Committee,
Stephen Hastings Breeze, Stephanie Azalea Brackel, Catherine Tortenson,
Scott Hastings Breeze, Collette Breeze Meyers, and Colin Hastings Breeze
(collectively plaintiffs) have filed a lawsuit against the State of California
challenging the constitutionality of AB 1936. As relevant here, the lawsuit
also names as defendants the College’s Dean and Directors in their official
capacities (collectively the College Defendants 1), seeking both declaratory
The College Defendants are David Faigman, Simona Agnolucci, Carl
1
Robertson, Shashikala Deb, Michael Ehrlich, Andrew Giacomino, Andrew
relief and an injunction to prevent them from implementing the
“unconstitutional aims” of the law.
The College Defendants filed a special motion to strike under the anti-
SLAPP statute (Code Civ. Proc., § 425.16 2), arguing that the complaint was
replete with references to their public statements and resolutions regarding a
new name for the College and calling upon the Legislature to pass legislation
adopting it. The trial court denied the motion, concluding that plaintiffs’
causes of action were based on the Legislature’s enactment of AB 1936, not
on the College Defendants’ speech or petitioning activity that preceded it. On
appeal, the College Defendants no longer try to justify their motion by
pointing to their activities prior to the statute’s enactment. Instead, they
argue that the anti-SLAPP statute applies because AB 1936 “authorizes and
requires” them to engage in particular speech—the new name by which they
“represent the College’s identity and values to the public”—and because
plaintiffs’ claims, if successful, would prevent or interfere with that speech.
We can agree that the success of plaintiffs’ claims would, at a
minimum, prevent the College Defendants from expressing a new official
designation for the College, but even assuming that future speech in which
the College Defendants use the new name is protected activity within the
meaning of the anti-SLAPP statute, it is not the reason plaintiffs have sued
them. Because plaintiffs’ claims are not based on the College Defendants’
speech, we conclude that the trial court properly denied the motion.
Houston, Claes Lewenhaupt, Mary Noel Pepys, Courtney Power, and Albert
Zecher. The State is not a party to this appeal.
2 All further statutory references are to the Code of Civil Procedure
unless otherwise specified. SLAPP stands for “ ‘strategic litigation against
public participation.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 & fn. 1
(Navellier).)
2
BACKGROUND
1. Facts 3
Born in 1814, Serranus Clinton Hastings (S.C. Hastings) was the first
Chief Justice of California and the State’s third Attorney General. In
addition to holding these public roles, he amassed significant wealth from
various real estate ventures and by 1870, became one of the largest
landowners in California. In 1878, S.C. Hastings sought to establish the first
law school on the West Coast of the United States and proposed the same to
the California Legislature. In response, the Legislature enacted a statute
that same year titled “An Act to create Hastings’ College of the Law, in the
University of the State of California” (the Act). (Stats. 1878, ch. 351.)
The Act provided “[t]hat S.C. Hastings be authorized to found and
establish a Law College, to be forever known and designated as ‘Hastings’
College of the Law.’ ” (Stats. 1878, ch. 351, § 1.) The Act further provided
that the College would be governed by a Board of Directors (Board),
independent of the Regents of California, and that the directors “shall always
provide for filling a vacancy with some heir or some representative of []
S.C. Hastings.” (Id.)
The Act’s passage was expressly conditioned upon S.C. Hastings’s
payment of $100,000 into the State Treasury. (Stats. 1878, ch. 351, § 7.) The
Act required the State to appropriate seven percent per year of this sum and
pay it “in two semi-annual payments to the Directors of the College.” (Id. at
§ 8.) The Act further stated that “should the State . . . fail to pay to the
Directors of said College the sum of seven per cent per annum . . . or should
the College cease to exist, then the State . . . shall pay to the said
3 Our recitation is based on the pleadings and on the papers submitted
in the trial court in connection with the anti-SLAPP motion.
3
S.C. Hastings, his heirs or legal representatives, the said sum of one hundred
($100,000) thousand dollars and all unexpended accumulated interest.” (Id.
at § 13.) S.C. Hastings accepted these terms and paid $100,000 to the State
Treasury, and the College was established. The Legislature subsequently
codified the Act’s terms in the Education Code. (See former Ed. Code,
§ 92200 et seq.)
In 2017, The San Francisco Chronicle published an article titled “The
Moral Case for Renaming Hastings College of the Law,” which included
allegations that S.C. Hastings was involved in fomenting violence and
atrocities against Native Americans living in what is present-day Mendocino
County. In response, the College formed the Hastings Legacy Review
Committee (HLRC) to consider and make appropriate recommendations to
address S.C. Hastings’s legacy. It also commissioned a history professor to
research and draft a report regarding S.C. Hastings’s role in the killing of
indigenous people in Northern California in the mid-nineteenth century. In
September 2020, Dean Faigman submitted a report to the Board that
discussed HLRC’s conclusions and recommended that the College retain its
name but pursue other restorative justice initiatives. In recommending that
the College keep its name, Dean Faigman reasoned that “most of the legal
profession has no idea who Serranus Hastings was or that UC Hastings was
named after him.”
On October 28, 2021, the New York Times published an article
questioning the College’s name with a headline that S.C. Hastings
“masterminded the killings of hundreds of Native Americans.” On
November 2, 2021, the Board held a special meeting and passed a resolution
directing Dean Faigman to “work with the California Legislature, the
Governor’s Office, and other offices to enact legislation changing the name of
4
the school.” A number of other meetings followed, and the Board ultimately
passed a resolution to recommend the name “College of the Law, San
Francisco” to the Legislature.
AB 1936 was passed by the Legislature in August 2022 and signed by
the Governor in September 2022. (Stats. 2022, ch. 478.) AB 1936 designated
the school’s name as “College of the Law, San Francisco” and amended
various statutes, including sections of the Education Code, to conform to the
new name. It also eliminated S.C. Hastings’s hereditary seat on the Board.
AB 1936 became effective on January 1, 2023.
2. Lawsuit and Anti-SLAPP Motion
Plaintiffs—a College alumni association and various descendants of
S.C. Hastings—filed a complaint against the State and the College
Defendants. The complaint included causes of action for declaratory relief
against all defendants on the grounds that AB 1936 violated the contract
clauses of the California and United States Constitutions, constituted an
impermissible bill of attainder and ex post facto law, and violated the
California Constitution’s provision regarding collegiate freedom. (Cal. Const.,
art. IX, § 9.) The complaint requested a declaration that the College’s name
remains “Hastings College of the Law” and that S.C. Hastings’s heirs or
representatives are still entitled to a seat on the Board. As against the State
only, the complaint alleged causes of action for breach of contract (specific
performance and damages) on the grounds that the Act constituted a
“binding written agreement between the State of California and
S.C. Hastings and his descendants” and that the State breached this
agreement by enacting AB 1936. As against the College Defendants only, the
complaint sought injunctive relief to enjoin them from implementing the
unconstitutional provisions of AB 1936, including the further expenditure of
5
taxpayer funds to change the College’s name or to eliminate the hereditary
Board seat.
The College Defendants filed a special motion to strike the complaint
under the anti-SLAPP statute. They argued that plaintiffs’ claims arose from
the following protected activity: (1) statements made by the College
Defendants at Board meetings with respect to the College’s name; (2) the
College Defendants’ public expressions regarding the College’s name and
request to the Legislature for a name change; and (3) the College Defendants’
future conduct that the injunctive and declaratory relief would prevent, such
as lobbying for additional funding to implement the name change, pursuing
any other change to the College’s original statutory framework, or “even . . .
referring to the College by the name they selected.” They also argued that
plaintiffs could not establish a probability of prevailing on the merits of their
claims under the second prong of the anti-SLAPP statute.
The trial court denied the motion under the first prong and did not
reach the second. It held that “none of plaintiffs’ claims are predicated on
defendants’ protected activity” because plaintiffs are “challenging the
enactment of AB 1936 and the consequences that flow from that statute, i.e.,
the replacement of the Hastings College of the Law name and the removal of
the hereditary seat on the college’s board of directors.” The College
Defendants timely appealed.
DISCUSSION
1. Anti-SLAPP Law and Standard of Review
The anti-SLAPP statute provides that “[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 or California Constitution
in connection with a public issue shall be subject to a special motion to strike,
6
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 anti-SLAPP statute does not insulate defendants from any
liability for claims arising from the protected rights of petition or speech. It
only provides a procedure for weeding out, at an early stage, meritless claims
arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384
(Baral).) “Litigation of an anti-SLAPP motion involves a two-step process.
First, ‘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.’ [Citation.] Second, for each claim that does arise
from protected activity, the plaintiff must show the claim has ‘at least
“minimal merit.” ’ ” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1009 (Bonni).)
“Only a cause of action that satisfies both prongs of the anti-SLAPP
statute—i.e., that arises from protected speech or petitioning and lacks even
minimal merit—is a SLAPP, subject to being stricken under the statute.”
(Navellier, supra, 29 Cal.4th at p. 89.) We review de novo a trial court’s
ruling denying an anti-SLAPP motion. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
2. We Find No Forfeiture
In general, a reviewing court will not consider for the first time on
appeal arguments that could have been, but were not, presented to the trial
court. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591.) Because the
College Defendants’ argument on appeal is not based, as it was in the trial
court, on the speech and petitioning activity by which they sought AB 1936’s
enactment, and instead rests on the future speech that they claim AB 1936
7
“authorizes and requires” of them, plaintiffs contend that the argument is
forfeited. 4
Any appearance the College Defendants’ current argument made in the
trial court was fleeting at best, and by no means can we fault the trial court
for not addressing it. However, their motion and opening memorandum did
note that plaintiffs sought to prevent them from referring to the College by
its new name, and their reply memorandum maintained that their
implementation of AB 1938 was “inseparable from protected activities”
because the College “wants to use ‘UC College of the Law, San Francisco’ to
describe itself to the world.” Moreover, at the hearing on the motion, the
College Defendants’ counsel argued that “the statute itself . . . is authorizing
and supporting speech activity.” In light of these statements, we will not
deem the argument forfeited.
3. Whether Plaintiffs’ Claims Arise From Protected Activity
a. “Arising From” Under the First Prong
Under the first prong of the anti-SLAPP statute, we must determine
whether the College Defendants have made a threshold showing that the
challenged causes of action arise from their protected activity. (Bonni, supra,
11 Cal.5th at p. 1009.) If such a showing has been made, we then move to the
second prong to determine whether plaintiffs have shown that their claims
have at least minimal merit. (Ibid.)
The anti-SLAPP statute identifies four categories of protected activity.
(§ 425.16, subd. (e)(1)–(4).) While the College Defendants argue that the
4We think the trial court was correct to reject the argument the
College Defendants made there. (See, e.g., City of Cotati v. Cashman (2002)
29 Cal.4th 69, 78 [“That a cause of action arguably may have been triggered
by protected activity does not entail that it is one arising from such”]; Durkin
v. City and County of San Francisco (2023) 90 Cal.App.5th 643, 652–654.)
8
name used to describe the College falls within the range of speech entitled to
First Amendment protection, “courts determining whether conduct is
protected under the anti-SLAPP statute look not to First Amendment law,
but to the statutory definitions in section 425.16, subdivision (e).” (City of
Montebello v. Vasquez (2016) 1 Cal 5th 409, 422.) The College Defendants do
not expressly invoke any of the statutory definitions, but plaintiffs, for their
part, do not argue that no definition applies. To avoid dwelling on an issue
the parties have not raised, we will therefore assume, without deciding, that
the College Defendants’ use of the new name could qualify for protection
under subdivision (e)(3), which covers “any written or oral statement or
writing made in a place open to the public or a public forum in connection
with an issue of public interest,” or under subdivision (e)(4), which covers
“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.”
“A claim arises from protected activity when that activity underlies or
forms the basis for the claim. [Citations.] 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.’ ” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057, 1062–1063
(Park).) In other words, “a claim may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not just evidence of
liability . . . .” (Id. at p. 1060.)
In Park, for example, the Supreme Court held that a discrimination
claim brought by a university professor who was denied tenure did not arise
from any protected statements or communications made by the university
during the tenure process. Rather, the claim was based on “the denial of
9
tenure itself and whether the motive for that action was impermissible.”
(Park, supra, 2 Cal.App.5th at p. 1068.) The court reasoned that “[t]he
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.”
(Ibid.)
b. The Conduct Underlying Plaintiffs’ Causes of Action Was the
Enactment of AB 1936, Not the College Defendants’ Speech
The five causes of action asserted against the College Defendants
(alone or alongside the State) challenge the same two things: the change to
the College’s name, and the removal of the hereditary seat on the College’s
Board. For the purposes of our discussion, we can disregard the dispute over
the Board seat because the College Defendants do not argue that it is based
on protected activity. 5 As for the name, the complaint alleges that it was
initially “enshrined by State law” in 1878, and that AB 1936—another state
law—has changed it. It is the Legislature’s enactment of AB 1936 that,
according to the complaint, gives rise to liability and therefore, in our view,
provides the basis for plaintiffs’ claims.
It is well established that anti-SLAPP protection “extends to
statements and writings of governmental entities and public officials on
matters of public interest and concern that would fall within the scope of the
statute if such statements were made by a private individual or entity.”
(Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17.) It appears to be an open
5 Thus, as the College Defendants acknowledge, plaintiffs have pled
what are at most “mixed” causes of action, meaning they arise only in part
from protected activity. (See Baral, supra,1 Cal.5th at p. 382.) While the
College Defendants’ motion sought to strike each cause of action in its
entirety, on appeal they argue that “at a minimum,” each of plaintiffs’ causes
of action “should be stricken to the extent they arise from and seek to
interfere with” the College Defendants’ speech.
10
question whether a challenge based on a speech-related enactment, rather
than on other activities undertaken by public entities or officials in
furtherance of their rights to free speech or to petition, may give rise to an
anti-SLAPP motion. (See San Ramon Valley Fire Protection Dist. v. Contra
Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 357
[suggesting that a public entity’s speech-related enactment may implicate its
exercise of free speech for anti-SLAPP purposes]; City of Montebello v.
Vasquez, supra,1 Cal.5th at pp. 425–427 [discussing San Ramon and noting
concern that applying section 425.16 to a public entity’s enactment may chill
citizens’ exercise of their right to challenge government action].) But we need
not decide that question here. Even assuming that AB 1936 is a “speech-
related” measure and that plaintiffs’ challenge to its enactment may be
subject to an anti-SLAPP motion, such a motion would properly be brought
by the public entity that enacted it: the State, not the College Defendants. As
the plain language of the anti-SLAPP statute provides, “[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 . . . shall be subject to a special motion
to strike.” (§ 425.16, subd. (b)(1), italics added.)
To avoid this problem, the College Defendants explain that their anti-
SLAPP motion is not based on the fact that AB 1936 itself can be
characterized as a speech-related measure insofar as it establishes a new
name for the College. Rather, they argue that AB 1936 “authorizes and
requires specific speech” by the College Defendants—i.e., referring to the
College by its new name—and that the success of plaintiffs’ claims would
prevent them from engaging in that speech. Or as they write in their reply,
“[t]he point is that AB 1936 authorizes speech, and that plaintiffs’ claims
arise directly from (and seek to silence) the speech that the statute governs.”
11
Nothing in the language of section 425.16 or the case law construing it
authorizes an anti-SLAPP motion simply because a claim would have an
adverse effect on protected activity. Presumably that is why the College
Defendants also assert that plaintiffs’ claims “arise directly from” their future
speech referring to the College by its new name, but we are not persuaded.
“In the anti-SLAPP context, the critical consideration is whether the cause of
action is based on the defendant’s protected free speech or petitioning
activity.” (Navellier, supra, 29 Cal.4th at p. 89.) While the complaint alleges
that the College Defendants “cannot lawfully remove ‘Hastings’ from the
College’s name,” and seeks to prevent them from doing so, the reasons
plaintiffs contend the name’s removal would be unlawful are the same
reasons they contend AB 1936 itself is unlawful—for example, that it would
violate the contract clauses of the federal and state constitutions or would
constitute an impermissible bill of attainder. The wrongfulness of any acts
by the College Defendants depends on and derives from the wrongfulness of
AB 1936 itself. In these circumstances, “the wrong complained of” (Park,
supra, 2 Cal.5th at p. 1060) is the law’s enactment, not what the College
Defendants do or say in conformity with it. That is true even if we accept
that, under Vargas, the College Defendants’ use of the new name is protected
activity within the meaning of section 425.16, subdivision (e), and that
plaintiffs’ claims would interfere with or prevent that speech. The College
Defendants’ future speech is at most a consequence of the State’s enactment
of AB 1936; it is the enactment itself that gives rise to plaintiffs’ claims. 6
6Plaintiffs observe that, while the name established by AB 1936 is the
one that the College Defendants prefer to use, it is not their preference that is
determinative; if the College Defendants were to “vote tomorrow to revert to
using the College’s former name,” the College’s official designation would
12
We are aware that in Bonni, the Supreme Court rejected the plaintiff
doctor’s argument that legally mandated reports the defendant hospital made
to the Medical Board of California and National Practitioner Data Bank
regarding his suspension did not give rise to his claims because they were
simply the “natural consequence” of the acts that actually harmed him.
(Bonni, supra, 11 Cal.5th at p. 1018.) However, the court rejected the
doctor’s argument because his complaint alleged the reports “as separate acts
of retaliation,” and his declaration in opposition to the anti-SLAPP motion
“separately describe[d] the harm he suffered as a result of the allegedly
retaliatory reports.” (Ibid.) Here, by contrast, plaintiffs do not allege the
College Defendants’ future speech as an independent basis for liability or as
imposing distinct harms.
Plaintiffs contend that the reason they have sued the College
Defendants is that they “merely occupy official positions on the College’s
Board for which injunctive relief is needed to effectively cease
implementation of AB 1936 by the College.” The complaint refers to tasks
such as “changing physical signage, student and faculty email addresses,
websites, and other various references to ‘Hastings’ within the College and its
programs and materials,” as well as “communicating the new name to
prospective students and employers.” The College Defendants do not argue
that these specific tasks are protected activity, but rather (as they first wrote
in the trial court) that the College’s implementation of AB 1936 is
“inseparable” from its protected activity in describing itself and signifying its
values to the world.
But even if these implementation measures were themselves protected
remain the same. Thus, plaintiffs reason, it is AB 1936 that is responsible for
their claimed injury.
13
activity, rather than simply bound up with it, “the remedy sought does not
affect whether the claim is based on protected activity.” (Coretronic Corp. v.
Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1392.) In Coretronic, the
defendant—a law firm sued for allegedly obtaining the plaintiffs’ confidential
information during an insurance coverage evaluation and using it to benefit
another client that was the plaintiffs’ adversary in litigation—argued that
the suit was a SLAPP in part because the plaintiffs sought to enjoin the
firm’s continued communications with its client. The court disagreed, finding
that the claims arose from the firm’s breach of its duties, and the fact that
the plaintiffs sought an injunction that would enjoin communication did not
alter the nature of the causes of action. (Ibid.) Similarly, in this case
plaintiffs’ claims arise from AB 1936, and the fact that plaintiffs seek
injunctive and declaratory relief to prevent the College Defendants from
implementing the law does not alter the basis for those claims. The College
Defendants argue that Coretronic is distinguishable because AB 1936 itself is
speech related, and because the complaint asserts separate causes of action
for injunctive relief against the College Defendants. But as we have
discussed, even assuming that AB 1936 is a speech-related measure, it is the
State’s speech, not the College Defendants’, and the alleged wrongfulness of
the College Defendants’ implementation of the law is not legally distinct from
the alleged wrongfulness of the law itself. Thus, while plaintiffs’ claims may
adversely affect the College Defendants’ future speech, they are based on the
enactment of AB 1936.
Since we find that plaintiffs’ claims do not arise from any protected
activity by the College Defendants under the first prong of the anti-SLAPP
analysis, we need not determine whether plaintiffs have shown a probability
14
of prevailing on the merits under the second prong. 7
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Plaintiffs are
entitled to recover their costs on appeal.
GOLDMAN, Acting P. J.
WE CONCUR:
TUCHER, J. *
FINEMAN, J. **
7We deny plaintiffs’ request for judicial notice because it relates only to
the second prong of the anti-SLAPP analysis and is therefore not relevant to
our resolution of the appeal. (Doe v. City of Los Angeles (2007) 42 Cal.4th
531, 544, fn. 4.)
*Presiding Justice of the Court of Appeal, First Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
**Judge of the Superior Court of California, County of San Mateo, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
15
Trial Court: City and County of San Francisco Superior
Court
Trial Judge: Honorable Richard B. Ulmer Jr.
Counsel for Defendants and Appellants: GIBSON, DUNN & CRUTCHER, Matthew S.
Kahn, Elizabeth K. McCloskey, Theodore J.
Boutrous Jr., Theane Evangelis, Matt Aidan
Getz
UC COLLEGE OF THE LAW, SAN
FRANCISCO, John K. DiPaolo, Laura M.
Wilson-Youngblood
Counsel for Plaintiffs and Respondents: MICHAEL YAMAMOTO, Gregory R.
Michael, Dorothy Yamamoto
DHILLON LAW GROUP, Harmeet Dhillon,
Mark P. Meuser, Karin Sweigart
16