Laker v. Bd. of Trs. of the Cal. State Univ.

• Decision Date: 28 February 2019
• Docket Number: H044836
• Citation: 32 Cal.App.5th 745,244 Cal.Rptr.3d 238
• Court: California Court of Appeals Court of Appeals
• Parties: Jason LAKER, Plaintiff and Respondent, v. BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY et al., Defendants and Appellants.

32 Cal.App.5th 745

244 Cal.Rptr.3d 238

Jason LAKER, Plaintiff and Respondent,

v.BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY et al., Defendants and Appellants.

H044836

Court of Appeal, Sixth District, California.

Filed February 28, 2019

Counsel for Defendants and Appellants: Sarju Anil Naran, Hoge, Fenton, Jones & Appel, Inc., San Jose; Anne Marie Grignon, Grignon Law Firm, LLP

Counsel for Plaintiff and Respondent: Stanley R. Apps

Amicus Curiae on Behalf of Plaintiff and Respondent: Joseph T. Francke, Californians Aware, Carmichael; Steven J. Andre

DANNER, J.

Dr. Jason Laker (Laker) sued the Board of Trustees of the California State University (University) and Mary McVey for defamation and retaliation arising from a series of internal investigations conducted by the University.¹ The defendants filed an anti-SLAPP motion² to strike the complaint under Code of Civil Procedure section 425.16,³ which the trial court denied on the ground that the defendants failed to show that Laker’s defamation and retaliation claims arose from any activity protected by section 425.16. For the reasons explained below, we agree with the University and McVey that the trial court erred in that finding as to Laker’s defamation claim. However, we affirm the trial court’s denial of the University’s motion to strike Laker’s retaliation claim, although we strike one allegation contained in that claim.

I. FACTS AND PROCEDURAL BACKGROUND

We draw the following facts from the pleadings and the supporting declarations submitted in the trial court. We accept Laker’s factual assertions as true for the purpose of resolving whether the trial court erred in its denial of the defendants’ special motion to strike. (See Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067, 217 Cal.Rptr.3d 130, 393 P.3d 905 ( Park ).) Laker is a professor in the University’s Department of Counselor Education (Department). In the summer of 2015, a student approached Laker claiming that the then-Chair of the Department, Dr. Lewis Aptekar (Aptekar), had sexually and racially harassed her. The student brought a formal Title IX⁴ complaint against Aptekar under the University’s policies and procedures.⁵ The investigator ultimately concluded that Aptekar had sexually harassed the student.

In a memorandum dated December 21, 2015, the investigator stated that she had "completed the formal investigation of the complaint." Aptekar was disciplined but was allowed to remain the chair of the Department until May 2016. Aptekar was later placed on paid leave and, according to Laker’s complaint, the University President made a statement in September 2016 that the University was looking into how the Aptekar matter was handled.

Overall, the parties dispute the propriety, thoroughness, and duration of the Aptekar investigation. Laker claims that the University and certain administrators, including McVey, covered up prior student complaints about Aptekar. In his complaint and in the declaration he submitted to the trial court in connection with the anti-SLAPP motion, Laker stated he had "heard rumors of troubling interactions between Aptekar and multiple students" prior to the summer of 2015, and he had expressed concern to McVey in January 2014 that Aptekar was making students "uncomfortable" and "was lacking in sufficient cultural sensitivity." When Laker later reviewed the draft investigation report made during the Aptekar investigation, he discovered it contained a mischaracterization of his prior communication with McVey, because McVey stated (incorrectly, in Laker’s view) that Laker had told her that " ‘things would come out’ about Aptekar if he became Department Chair."

In any event, there is no dispute that, in February 2016, Beth Pugliese, the Associate Vice President of Human Resources, and certain other University administrators received an e-mail from the student who had originally filed the Title IX complaint against Aptekar. The e-mail was titled "Investigation Outcome Follow-up/Concern" and noted that the "incident and case" related to Dr. Aptekar "has been going on for almost 8 months." In the e-mail, the student stated she was experiencing stress and anxiety from continuing to see Aptekar, who was still the chair of the Department. The student noted that the "process has been very long and drawn out" and "[b]ased on the [investigator’s] report, at least two professors were aware of his behaviors and at least one expressed these concerns to the university." A few days later, Pugliese responded to the student by e-mail. Pugliese’s e-mail stated, "As you note, it is concerning that other faculty members, including a previous chair of the department, appear to have received information regarding troubling behavior with other student(s) as early as 2013. Those individuals should have notified appropriate administrators, but they did not." Pugliese’s e-mail further noted that "Personnel action against Dr. Aptekar ... cannot be taken until certain processes are completed as required by law and by the faculty Collective Bargaining Agreement."

In March and April of 2016, the University investigated Laker, as well as other members of the University’s faculty, in response to various complaints. As to Laker specifically, three University employees, including Aptekar, made separate complaints pursuant to university regulations. Aptekar claimed that Laker harmed him by "inspiring students to come forward to report sexual and racial harassment by Aptekar." The other complaints were from two different faculty members and related to, respectively, complaints that Laker failed to make breast-feeding accommodations and made intimidating statements.⁶

After exhausting administrative remedies,⁷ Laker filed the lawsuit at issue here against the University and several university administrators for defamation and retaliation under the California Fair Employment and Housing Act. As to the defamation claim, Laker alleged he was falsely accused by defendants when they stated that Laker "knew of sexual harassment and failed to report it." He also alleged that McVey and other University officials called him a "liar" when he said other students had complained of sexual harassment by Aptekar.

As to his retaliation claim, Laker stated that the University and others retaliated against him because he had opposed Aptekar’s harassment "and/or" had assisted the student with her complaint against Aptekar. In terms of the means of retaliation, Laker alleged that the defendants retaliated against him by making defamatory statements with the intent of "scapegoating" him for failing to report Aptekar and by causing employees to file against Laker three "meritless Grievances," which the University then investigated. The retaliatory actions caused Laker "emotional distress, including fear, humiliation and chronic anxiety, based on the ongoing scapegoating of Laker." Laker also alleges in his complaint that he was "red flagged" by a university administrator as "someone who should not be allowed to meet with the new [University] President."

The defendants responded to Laker’s complaint with an anti-SLAPP motion to strike the complaint in its entirety. They argued that Laker’s complaint should be stricken because the defamation and retaliation causes of action arose from protected activity and Laker had no probability of prevailing on either of his two claims. Their motion was accompanied by declarations and exhibits.

McVey submitted a declaration denying she ever made any defamatory statements about Laker. She acknowledged that she "did respond to investigators’ questions about Dr. Laker within the context of the Dr. Aptekar matter but [has] not made public negative statements about Dr. Laker." Pugliese also submitted a declaration testifying about her e-mail of February 2016, and disavowing that she had made any defamatory remarks in the e-mail or otherwise about Laker. Pugliese stated "to the extent that I said anything that could be construed as negative about Dr. Laker, I made the statements for the purpose of an investigation regarding Dr. Aptekar’s conduct, and my statements would have been entirely limited to San Jose State University administration and investigators who were involved in the investigation. I have not made any public negative statements about Dr. Laker."

Julie Paisant, the Executive Director of the University’s Office for Equal Opportunity and Employee Relations, who was designated to investigate the University’s EO 1096 complaints, confirmed that three EO 1096 complaints were filed against Laker "between March and April 2016" and the University "investigated" all three complaints "as required by Article III.A [of EO 1096]."

Laker filed a written opposition to the anti-SLAPP motion and submitted a declaration that largely repeated the allegations in his complaint. In his declaration Laker stated, "I believe that both McVey and Chin reiterated their defamatory remarks as recently as July and August 2016 when I was communicating to SJSU Provost Andrew Feinstein, attempting to expose their cover-up of the prior reports of sexual misconduct by Aptekar." Laker also submitted a declaration from Jonathan Karpf, a lecturer at the University. Karpf’s declaration stated that, contrary to what the University claimed, not all EO 1096 complaints had to be investigated. In Karpf’s opinion, the three EO 1096 complaints made against Laker were "highly unusual" and did not meet "the threshold for investigation under EO 1096." Laker additionally filed in the trial court a request for judicial notice that attached several e-mails between himself and a prosecutor for the Public Integrity Unit of the Office of the District Attorney for Santa Clara County regarding concerns that University administrators (including McVey) had lied to investigators during the Aptekar investigation.⁸

The defendants filed a reply brief, along with an additional declaration from Paisant.⁹ In her second...