Iloh v. Regents of the University of California

Filed 8/24/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CONSTANCE ILOH,
Plaintiff and Respondent, G061238
v. (Super. Ct. No. 30-2021-01197536)
REGENTS OF THE UNIVERSITY OF OPINION
CALIFORNIA,
Defendant;
THE CENTER FOR SCIENTIFIC
INTEGRITY,
Real Party in Interest and Appellant.
Appeal from an order of the Superior Court of Orange County, Nancy E.
Zeltzer, Judge. Reversed and remanded with directions.
Law Offices of Kelly Aviles, Kelly Aviles and Shaila Nathu for Real Party
in Interest and Appellant.
Tabah Law and Elvin I. Tabah for Plaintiff and Respondent.
* * *
This is our second opinion in this case. The Center for Scientific Integrity
(CSI) is an organization that reports on academic retractions and accountability. CSI
wrote an article about Constance Iloh, a professor at the University of California, Irvine
(UCI), after several academic journals retracted articles Iloh had written due to concerns
about possible plagiarism or inaccurate citation references. In a follow-up to that article,
CSI sent UCI a records request under the California Public Records Act (CPRA) (Gov.
Code, § 7920.000 et seq.), requesting Iloh’s postpublication communications with the
journals and UCI.
Iloh filed a petition for writ of mandate, declaratory relief, and injunctive
relief against UCI to prevent disclosure of her communications, and later added CSI as a
real party in interest. She then filed a motion for preliminary injunction to prevent
disclosure. Meanwhile, CSI filed a motion to strike Iloh’s petition under the anti-SLAPP
(strategic lawsuit against public participation) statute (Code Civ. Proc., § 425.16
(§ 425.16)).
Our first opinion in this case concerned Iloh’s motion for preliminary
injunction. The trial court denied that motion on the grounds that Iloh had not established
a likelihood of prevailing on the merits, and we affirmed that order. (Iloh v. Regents of
University of California (2023) 87 Cal.App.5th 513 (Iloh I).)
We now consider CSI’s anti-SLAPP motion. The trial court denied the
motion, finding that although protected activity may have led to the petition, it was not
the “basis” for the petition. We disagree. In issuing the CPRA request, CSI was
engaging in newsgathering so it could report on matters of public interest, such as how a
public university funded largely by taxpayer dollars resolves quality or integrity problems
in its professors’ publications. CSI was therefore engaged in protected activity when it
issued the CPRA request.
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Iloh filed her petition for writ of mandate to prevent UCI from complying
with CSI’s CPRA request. By targeting and seeking to impede CSI’s newsgathering
activity, Iloh’s petition threatens to chill CSI’s speech-related processes like
newsgathering; if successful, this could inhibit CSI’s exercise of free speech. This is the
type of lawsuit the anti-SLAPP statute is designed to address, and it should be stricken if
Iloh cannot demonstrate a probability of prevailing on her petition.
The trial court has not yet performed prong two of the anti-SLAPP analysis,
which involves determining whether Iloh has established a probability of prevailing on
her claims. We decline to consider that question in the first instance. Instead, we reverse
the order denying CSI’s anti-SLAPP motion under prong one of the anti-SLAPP statute
and remand this matter with directions that the trial court consider prong two of the
anti-SLAPP statute.
FACTS
As detailed in Iloh I, supra, 87 Cal.App.5th 513, “Iloh has a Ph.D. in urban
education policy. She was employed at [UCI] from 2015 to 2021, first as a postdoctoral
fellow, and then as an assistant professor in UCI’s school of education. . . .
“During her time as a UCI professor, Iloh published research articles on
education in a variety of academic journals. At issue here are four [of those] articles
published in journals unaffiliated with UCI: (1) Paving effective community college
pathways by recognizing the Latino post-traditional student (2018) in the Journal of
Latinos and Education; (2) Not non-traditional, the new normal: adult learners and the
role of student affairs in supporting older college students (2017-2018) in Colorado State
University’s Journal of Student Affairs; (3) Toward a new model of college “choice” for
a Twenty-First-Century context (2018) in the Harvard Educational Review; and (4) Does
distance education go the distance for adult learners? Evidence from a qualitative study
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at an American community college (2018) in the Journal of Adult and Continuing
Education.” (Iloh I, supra, 87 Cal.App.5th at p. 519.)
“After the articles were published, an anonymous source reportedly
e-mailed the four journals and demanded the articles be retracted. [A]ll four articles were
[then] either retracted or corrected by the journals in which they were published: the
Journal of Latinos and Education retracted Iloh’s article in full; the Journal of Student
Affairs removed Iloh’s article and the entire issue in which it was published; the Harvard
Educational Review issued an errata statement; and the Journal of Adult and Continuing
Education issued a correction.” (Iloh I, supra, 87 Cal.App.5th at p. 520.) It seems the
retractions were related to concerns about possible plagiarism or inaccurate citation
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references in Iloh’s articles.
“The retractions caught the attention of Retraction Watch, an editorially
independent organization that maintains a database of article retractions in scientific
journals, covers incidents of particular note, and reports on academic publishing,
transparency, and accountability. Retraction Watch is published by [CSI], a nonprofit
public benefit corporation whose mission is ‘to promote transparency and integrity in
science and scientific publishing, and to disseminate best practices and increase
efficiency in science.’
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“[T]he Journal of Latinos and Education’s retraction explained Iloh’s article
‘contain[ed] a substantial amount of text overlap with [various] sources, which were
either inaccurately referenced or not referenced within the article.’ [T]he Harvard
Educational Review’s errata statement cited ‘multiple instances in which the author
incompletely attributed previously published material in the introduction and literature
review.’ And the Journal of Adult and Continuing Education’s correction explained that
‘[s]ections throughout the original manuscript have been rewritten and updated and this
manuscript also includes new references.”’ (Iloh I, supra, 87 Cal.App.5th at p. 520.)
We have not reviewed the contested materials because they are not part of
our record. We therefore render no opinion as to whether Iloh actually committed
plagiarism or otherwise violated university policy.
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“In August 2020, Retraction Watch published an article about Iloh’s
papers; the article reported the papers had been ‘retracted and corrected, for plagiarism
and misuse of references.’ The following month, to further its investigation, Retraction
Watch sent a CPRA records request to UCI seeking all correspondence from January
2019 onward (1) between UCI and Iloh regarding articles published in the four journals,
and (2) between UCI or Iloh and the four journals regarding articles authored by Iloh.
“UCI notified Iloh of the CPRA request and its intent to disclose the
responsive records. Iloh responded that the requested records fell outside the scope of the
CPRA and argued the request violated her privacy rights. UCI agreed to remove a few
records from its production, but maintained it would disclose the remaining records
absent a court order.
“In April 2021, Iloh filed a verified petition against UCI and the Regents of
the University of California (the Regents) for writ of mandate, declaratory relief, and
injunctive relief to prevent disclosure.” (Iloh I, supra, 87 Cal.App.5th at pp. 520-521.)
Shortly thereafter, Iloh apparently left her position at UCI.
“In July 2021, Iloh filed an amended petition adding CSI as a real party in
interest and removing UCI as a respondent. She then filed a motion for preliminary
injunction enjoining the Regents from disclosing the requested records to CSI.” (Iloh I,
supra, 87 Cal.App.5th at p. 521.) “The trial court denied Iloh’s motion for preliminary
injunction, finding Iloh had not established a likelihood of prevailing on the merits
because she had failed to demonstrate the requested records were not ‘public records’
under the CPRA, nor had she established the records were otherwise exempt from
disclosure.” (Id. at pp. 520-521.) Iloh appealed that order; this court affirmed the trial
court’s ruling.
While Iloh’s appeal was still pending, CSI filed its anti-SLAPP motion,
which asserted Iloh’s petition should be stricken because it “arises from acts in
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furtherance of [CSI’s] rights of petition and free speech in connection with a public issue,
and [because] Iloh cannot demonstrate a probability of prevailing.”
The trial court denied CSI’s motion, finding that Iloh’s claims do not arise
from protected activity. According to the court, CSI’s protected activity of
newsgathering may have led to or been incidental to the conduct being challenged (i.e.,
the disclosure of the records), but it was not the basis of Iloh’s claims. CSI appeals that
order.
DISCUSSION
1. The Anti-SLAPP Statute
The Legislature enacted the anti-SLAPP statute in 1992 to address “what
are commonly known as SLAPP suits (strategic lawsuits against public participation)—
litigation of a harassing nature, brought to challenge the exercise of protected free speech
rights.” (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665,
fn. 3.) The statute authorizes a special motion to strike meritless claims early in the
litigation if the claims “aris[e] 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 . . . .” (§ 425.16, subd. (b)(1).) The statute
is “‘intended to resolve quickly and relatively inexpensively meritless lawsuits that
threaten free speech on matters of public interest.’” (Rand Resources, LLC v. City of
Carson (2019) 6 Cal.5th 610, 619.)
When evaluating a special motion to strike, the trial court must engage in a
two-step analysis. “First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected activity. . . .
[Citation.] If the court finds such a showing has been made, it then determines whether
the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “Only a cause of action
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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 v. Sletten (2002) 29 Cal.4th 82, 89.)
“At the first step, the moving defendant bears the burden of identifying all
allegations of protected activity, and the claims for relief supported by them. . . . If the
court determines that relief is sought based on allegations arising from activity protected
by the statute, the second step is reached. There, the burden shifts to the plaintiff to
demonstrate that each challenged claim based on protected activity is legally sufficient
and factually substantiated. The court, without resolving evidentiary conflicts, must
determine whether the plaintiff’s showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 396.)
We review a trial court’s order denying an anti-SLAPP motion de novo.
(Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).) The statute requires us to
“consider the pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” (§ 425.16, subd. (b)(2).) We therefore consider
not only the complaint, but also the declarations filed in support of and in opposition to
the anti-SLAPP motion. We do not weigh the credibility of that evidence, and we
“‘“accept as true the evidence favorable to the plaintiff[s].”’” (Flatley, at p. 326.)
2. Applicability to Real Parties in Interest
As a threshold matter, we must address whether CSI, as a real party in
interest, may pursue anti-SLAPP relief. Iloh argues an anti-SLAPP motion is not
available to CSI because it is not a named defendant, and because Iloh’s petition for writ
of mandate does not assert any claims against it. (See § 425.16, subd. (b)(1) [“A cause of
action against a person arising from [protected activity] shall be subject to a special
motion to strike”].)
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We disagree. A real party in interest may bring an anti-SLAPP motion if it
has a direct interest in the subject of the mandamus proceeding and will be impacted by
the litigation’s outcome. (See Rudisill v. California Coastal Com. (2019) 35 Cal.App.5th
1062, 1073 (Rudisill) [where real parties in interest had a direct interest in the property
that was the subject of the mandamus proceeding and might be subject to an attorney fee
award if they participated in the litigation, “[i]t was reasonable for [them] to conclude
that the [p]etition asserted claims against them”]; see, e.g., Sandlin v. McLaughlin (2020)
50 Cal.App.5th 805, 816, 824-826 [trial court should have granted anti-SLAPP motion
filed by real parties in interest concerning petition for writ of mandate]; see also § 425.16,
subd. (a) [anti-SLAPP statute “shall be construed broadly”].)
In this case, Iloh’s petition for writ of mandate against the Regents seeks
“to prevent the disclosure of” Iloh’s correspondences to CSI and block the Regents from
complying with CSI’s CPRA request. Because CSI’s ability to access the requested
documents under the CPRA is the focus of this lawsuit, CSI has a direct interest in the
proceedings and may seek anti-SLAPP relief.
3. Prong One: Protected Activity
That brings us to prong one of the anti-SLAPP analysis. In this step, we
must decide whether CSI made a threshold showing that Iloh’s claims arise from an act in
furtherance of CSI’s right of petition or free speech in connection with a public issue.
(§ 425.16, subd. (b)(1).) That is, did CSI establish the complaint arises from protected
activity?
As is relevant here, the anti-SLAPP statute defines protected activity to
include “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” (§ 425.16, subd. (e)(3)), and
“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)(4)). “[T]he ‘in furtherance’ requirement of section 425.16,
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subdivision (e)(4), may be satisfied by conduct preliminary to a completed exercise of the
right of free speech.” (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1042 (Ojjeh).)
It is well established that reporting the news involves protected activity.
(San Diegans for Open Government v. San Diego State University Research Foundation
(2017) 13 Cal.App.5th 76, 101 (San Diegans).) Iloh’s counsel conceded as much during
oral argument.
Because newsgathering is part and parcel of that protected activity,
newsgathering likewise constitutes protected activity. (Taus v. Loftus (2007) 40 Cal.4th
683, 713 [authors and publishers who conducted investigation about validity of scholarly
article were “unquestionably” engaged in conduct in furtherance of their right of free
speech]; San Diegans, 13 Cal.App.5th at p. 101 [newsgathering and other related conduct
undertaken in furtherance of the news media’s right to free speech is protected activity];
Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166 [same]; Blue v.
Office of Inspector General (2018) 23 Cal.App.5th 138, 153 [“information gathering
preparatory to the publishing of” Inspector General’s report was protected activity].)
The CPRA request at the center of this lawsuit was issued as part of CSI’s
newsgathering efforts and in furtherance of its reporting on the four article retractions.
As noted, CSI is a nonprofit public benefit corporation that promotes transparency and
integrity in scientific publishing; through Retraction Watch it reports on academic article
retractions and accountability. After four different academic journals retracted Iloh’s
articles, Retraction Watch published an article on those retractions. A month later, to
further its investigation of Iloh’s articles, Retraction Watch sent the CPRA records
request to UCI seeking certain postpublication communications between Iloh, UCI, and
the journals. Because CSI issued the CPRA records request as part of its newsgathering
efforts, the records request qualifies as protected activity.
Further, the documents sought in the CPRA records request concerned “an
issue of public interest.” As we noted in our previous opinion, “There is a strong public
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interest in knowing how a public university funded largely by taxpayer dollars handles
and resolves quality or integrity problems in its professors’ publications” because
“(1) public funds are used both to pay UCI assistant professors like Iloh and also to
investigate alleged academic dishonesty, (2) academic research culminating in
publication is central to UCI’s public function and within Iloh’s job duties, and (3) the
public has an interest in understanding how UCI addresses allegations of academic
dishonesty.” (Iloh I, supra, 87 Cal.App.5th at p. 526.)
CSI issued its CPRA records request as part of its newsgathering efforts.
CSI was therefore engaged in protected activity under the anti-SLAPP statute when it
issued the CPRA request.
But our prong one analysis does not end there. Even if a lawsuit involves
protected activity, it does not automatically follow that all claims associated with that
activity must be stricken under the anti-SLAPP statute. To qualify for anti-SLAPP
protection, the moving party must also demonstrate that the challenged claims “aris[e]
from” protected activity. (§ 425.16, subd. (b)(1).)
Our Supreme Court has addressed what “nexus . . . a defendant [must]
show between a challenged claim and the defendant’s protected activity” to meet the
“arising from” requirement. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1060.) “[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 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.” (Ibid.) This requires courts
to “‘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.’” (Id. at p. 1065.)
“‘[T]he mere fact that an action was filed after protected activity took place does not
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mean the action arose from that activity for the purposes of the anti-SLAPP statute.’”
(Id. at p. 1063.) Courts must “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.” (Id. at p. 1064.) Courts must also “distinguish
between the challenged decisions and the speech that . . . thereafter expresses them.”
(Id. at p. 1067.)
Thus, for a moving party to meet the “arising from” burden, “it is not
enough to establish that the action was filed in response to or in retaliation for a party’s
exercise of the right to petition.” (Bergstein v. Stroock & Stroock & Lavan LLP (2015)
236 Cal.App.4th 793, 804 (Bergstein).) The fact a cause of action “may have been
triggered by protected activity” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78
(Cashman)), or the “fact that protected activity may lurk in the background—and may
explain why the rift between the parties arose in the first place” (Episcopal Church Cases
(2009) 45 Cal.4th 467, 478), does not mean the alleged SLAPP arises from protected
activity.
Instead, “the claim must be based on the protected petitioning activity.”
(Bergstein, supra, 236 Cal.App.4th at p. 804; see Graffiti Protective Coatings, Inc. v. City
of Pico Rivera (2010) 181 Cal.App.4th 1207, 1215.) In evaluating whether that
requirement is met, courts consider “the principal thrust or gravamen of a plaintiff’s
cause of action” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510,
519-520) and determine whether the acts underlying that cause of action were acts “in
furtherance of the right of petition or free speech” (Cashman, supra, 29 Cal.4th at p. 78).
The trial court concluded the required nexus was lacking here, and for that
reason denied CSI’s motion. We disagree. The entire purpose of Iloh’s petition is to
prevent the disclosure of records in response to CSI’s CPRA request. The propriety of
the CPRA request is the very crux of the petition; without the CPRA request, there would
be no petition. Indeed, the opening paragraphs of Iloh’s verified amended petition
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repeatedly aver that the petition seeks “to prevent the disclosure of any records” under the
CPRA. The petition therefore “aris[es] from” the CPRA records request. (See § 425.16,
subd. (b)(1).)
Iloh insists her petition does not arise from protected activity because it is
not predicated on wrongful disclosure and does not seek any damages from CSI. We are
not persuaded. The fact that the petition seeks to enjoin future conduct does not render
the anti-SLAPP statute inapplicable. (Rudisill, supra, 35 Cal.App.5th at p. 1071 [anti-
SLAPP statute applies not only to complaints for damages, but also to writ petitions
seeking a court order]; see Ojjeh, supra, 43 Cal.App.5th at p. 1041 [anti-SLAPP
“protection may be afforded to preliminary actions that assist or are helpful in advancing
the exercise of the right of free speech, even if the speech activity is still formative or
incomplete at the time a lawsuit is filed”].) We see “no reason why newsgathering
activity and other actions contributing to a broadcast report should be less deserving of
anti-SLAPP protection than the broadcast report itself. Indeed, a lawsuit targeting
newsgathering activity threatens to chill participation in speech-related processes and, if
successful, may block the exercise of free speech.” (Id. at p. 1042.)
Iloh alternatively argues that striking her petition under the anti-SLAPP
statute would lead to an “absurdity” because her petition is a “reverse-CPRA action” that
is explicitly authorized by case law. (See Amgen Inc. v. Health Care Services (2020)
47 Cal.App.5th 716, 732 [an interested third party who desires to prevent a public agency
from disclosing records under the CPRA may bring an independent action for declaratory
relief or traditional mandamus]; Marken v. Santa Monica-Malibu Unified School Dist.
(2012) 202 Cal.App.4th 1250, 1266-1267 [similar].) According to Iloh, it would be
wrong for us to hold that she has violated the law by filing an action that is permitted by
these cases.
Again, we are not persuaded. Our holding does not mean that a third party
may never file a reverse-CPRA action to prevent a public agency from disclosing
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records; it means only that such an action may be stricken under the anti-SLAPP statute if
the petitioner cannot establish a likelihood of prevailing under prong two of the
anti-SLAPP analysis.
4. Prong Two: Probability of Prevailing
Because the trial court found Iloh’s claims did not arise from protected
activity, it did not perform the prong two analysis required to determine whether Iloh
established a probability of prevailing on her claims. We remand the matter for the trial
court to resolve that question in the first instance. (See Collier v. Harris (2015)
240 Cal.App.4th 41, 58.)
DISPOSITION
The trial court’s order denying CSI’s special motion to strike is reversed.
On remand, the court is directed to engage in prong two of the anti-SLAPP statute
analysis. CSI shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
GOETHALS, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
MOTOIKE, J.
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