Since its enactment, California’s anti-SLAPP statute – Code of Civil Procedure Section 425.16 – has been a hotbed of appellate litigation. On May 4, the California Supreme Court added to the anti- SLAPP annals with its decision in Park v. Board of Trustees of the California State University, 2017 DJDAR 4232. Park settles a question involving the intersection between the anti-SLAPP statute and unlawful discrimination in employment. Sungho Park, formerly a tenure-track professor at CSU Los Angeles, alleged national origin discrimination in the university’s denial of his application for tenure.
The university filed a special motion to strike under the anti-SLAPP statute. When a defendant files an anti-SLAPP motion, courts employ a two-step process. First, the moving party bears the burden of establishing that the challenged claims arise from the defendant’s protected speech or petition activity. CCP Section 425.16(b); Simpson Strong-Tie Enterprises v. Consumer Cause, Inc., 49 Cal.4th 12 (2010). If the defendant meets that burden, the analysis proceeds to step two, where the plaintiff must establish the claims have at least “minimal merit.” Navallier v. Sletten, 29 Cal.4th 82 (2002).
In its anti-SLAPP motion, the university argued Park’s suit arose from protected activities, including numerous communications that were part of a deliberative process of an “official proceeding authorized by law” (see CCP Section 425.l6(e)(2)). The trial court denied the motion, finding that the university did not meet its burden under the first prong. The court ruled the lawsuit was based on the decision to deny tenure, rather than any communicative conduct, in connection with that decision.
A divided Court of Appeal reversed. The majority reasoned that the gravamen of the complaint – the university’s decision to deny Park tenure – was based entirely on evaluations of Park’s performance in the “retention, tenure or promotion” proceedings, which formed the fundamental basis for the denial of tenure. The dissent argued the process by which a decision is made (which may involve protected activities) should not be conflated with the ultimate governmental action itself (which is not protected).
The Supreme Court took up the case to decide a question that has generated uncertainty in the lower courts: Does the anti-SLAPP statute authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” but does not seek relief against any participant in that proceeding based on his or her protected communications?
In a unanimous decision, authored by Justice Kathryn M. Werdegar, the Supreme Court reversed the Court of Appeal. The Supreme Court rejected the university’s argument that all aspects of the tenure ‘review process, including the ultimate decision, are inextricably intertwined protected activity. In holding Park’s unlawful discrimination claim is not subject to the anti-SLAPP statute, the Supreme Court adopted the reasoning of San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn., 125 Cal.App.4th 343 (2004). The court in San Ramon distinguished between a government entity’s allegedly wrongful act and the preceding deliberations. The Supreme Court disapproved of appellate decisions which fail to recognize this distinction.
As suggested in Justice Werdegar’s opinion, the Supreme Court’s holding logically follows from its prior interpretations of the anti-SLAPP statute in Navellier and City of Cotati v. Cashman, 29 Cal.4th 69 (2002), which held that “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.”
Emphasizing the significance of the distinction recognized in San Ramon, Park argued his claim is that the denial of tenure was unlawfully discriminatory. By contrast, Park did not bring defamation or interference claims against individuals who participated in the pre-termination, deliberative process. Park conceded that such claims would have been subject to the anti-SLAPP statute.
The holding in Park is perhaps best explained by considering the alternative: A win for the university in this case would likely mean all discrimination lawsuits against public employees are subject to the anti-SLAPP statute. Paraphrasing a comment from Justice Goodwin H. Liu at oral argument, if this case is a SLAPP then all discrimination lawsuits against public employers are SLAPPs. Park argued that, under such a holding, “free speech becomes the cloak for discrimination.”
Although subjecting discrimination lawsuits to the anti-SLAPP lawsuit does not give public employer defendants blanket immunity, Park argued that doing so would place a “huge burden” on employees claiming to be the victims of unlawful discrimination. Such plaintiffs would be required to meet a summary judgment-like burden at the outset of the case, without the benefit of discovery.
The consequence of failure to meet that burden is not only the dismissal of the suit, but also liability for attorney fees. CCP Section 425.16(c). An issue the Supreme Court seemed to wrestle with is whether a university’s selection of a professor is itself expressive conduct. Or, under the rubric of the anti-SLAPP statute, is the hiring decision “in furtherance of” the university’s exercise of constitutionally protected speech? On this point, the university relied principally on Hunter v. CBS Broadcasting Inc., 221 Cal.App.4th 1510 (2013).
In Hunter, the plaintiff alleged the defendant broadcaster’s refusal to hire him as a weather news anchor was discriminatory. It was well-settled that the reporting of news is constitutionally protected free speech. The court in Hunter held a news media organization’s decision as to who reports the news is an act in furtherance of the constitutionally protected reporting of the news. The university argued tenure decisions implicate the public interest as much as decisions about who will deliver the news.
At oral argument, some justices suggested tenure decisions may fall within a “free speech zone” under the umbrella of “academic freedom” in “construction of a proper learning environment.” Ultimately, however, the Supreme Court concluded that, to fit within the rationale of Hunter, the university bore the burden of explaining “how the choice of faculty involved conduct in furtherance of University speech on an identifiable matter of public interest.” The university did not develop any such argument.
Park provides clarity in an area of confusion over the applicability of the anti-SLAPP statute to discrimination lawsuits. It remains to be seen, however, whether Park’s discussion of Hunter provides an avenue for public universities (or, more broadly, public employers) to establish a record showing a nexus between a hiring decision and the exercise of a university’s speech rights. Notably, in Park, the Supreme Court did not “express any opinion concerning whether [Hunter] itself was correctly decided.”
James S. Azadian is a shareholder of Enterprise Counsel Group ALC in Irvine and serves as the chair of the firm’s nationwide Appellate, Writs, and Constitutional Law Practice. You can reach him at firstname.lastname@example.org.
Cory L. Webster is an associate practicing in appeals and business litigation. You can reach him at cwebster®enterprisecounsel.com.