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

• Decision Date: 04 May 2017
• Docket Number: S229728
• Citation: 393 P.3d 905,2 Cal.5th 1057,217 Cal.Rptr.3d 130
• Court: California Supreme Court
• Parties: Sungho PARK, Plaintiff and Respondent, v. BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY, Defendant and Appellant.

2 Cal.5th 1057

393 P.3d 905

217 Cal.Rptr.3d 130

Sungho PARK, Plaintiff and Respondent,

v.BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY, Defendant and Appellant.

S229728

Supreme Court of California

Filed May 4, 2017

Towle, Denison, Smith & Maniscalco, Towle Denison & Maniscalco and Michael C. Denison, Los Angeles, for Defendant and Appellant.

Joseph T. Francke, Carmichael, and Steven J. André for Californians Aware, First Amendment Project, Penelope Canan, Libertarian Law Council, Angie Morfin Vargas, City Watch, Inc., and Consumer Attorneys of California as Amici Curiae on behalf of Defendant and Appellant.

Siegel & Yee, Jane E. Brunner and Alan S. Yee for Plaintiff and Respondent.

Davis Wright Tremaine, Thomas R. Burke, Nicolas A. Jampol and Diana Palacios, Los Angeles, for First Amendment

Coalition as Amicus Curiae on behalf of Plaintiff and Respondent.

Briggs Law Corporation, Anthony N. Kim and Cory J. Briggs, San Diego, for San Diegans for Open Government and The Inland Oversight Committee as Amici Curiae on behalf of Plaintiff and Respondent.

Duchrow & Piano and David J. Duchrow, Santa Monica, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Respondent.

Werdegar, J.

To combat lawsuits designed to chill the exercise of free speech and petition rights (typically known as strategic lawsuits against public participation, or SLAPPs), the Legislature has authorized a special motion to strike claims that are based on a defendant's engagement in such protected activity. (See Code Civ. Proc., § 425.16, subd. (a).)¹ We consider a question that has generated uncertainty in the Courts of Appeal: What nexus must a defendant show between a challenged claim and the defendant's protected activity for the claim to be struck?

As we explain, 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. Because the Court of Appeal ruled to the contrary, holding a claim alleging a discriminatory decision is subject to a motion to strike so long as protected speech or petitioning activity contributed to that decision, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Sungho Park was a tenure-track assistant professor at California State University, Los Angeles. He is of Korean national origin. In 2013, Park applied for tenure but his application was denied. He filed a discrimination charge with the Department of Fair Employment and Housing and, after receiving a right-to-sue letter, filed suit under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. ) for national origin discrimination and failure to receive a discrimination-free workplace.

Defendant the Board of Trustees of the California State University (University) responded with a motion to strike. Anti-SLAPP motions are evaluated through a two-step process. Initially, 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. (§ 425.16, subd. (b) ; see id. , subd. (e) [defining protected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21, 109 Cal.Rptr.3d 329, 230 P.3d 1117 ; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703 ; see generally City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420, 205 Cal.Rptr.3d 499, 376 P.3d 624 ; Baral v. Schnitt (2016) 1 Cal.5th 376, 384, 205 Cal.Rptr.3d 475, 376 P.3d 604.) The University argued Park's suit arose from its decision to deny him tenure and the numerous communications that led up to and followed that decision, these communications were protected activities, and Park had not shown a sufficient probability of prevailing on the merits.

The trial court denied the motion. It agreed with Park that the complaint was based on the University's decision to deny tenure, rather than any communicative conduct in connection with that decision, and that the denial of tenure based on national origin was not protected activity, so the University had not carried its burden of showing Park's suit arose from protected activity within the meaning of section 425.16, subdivision (e). Accordingly, the trial court did not reach the second step of the anti-SLAPP inquiry.

A divided Court of Appeal reversed. The majority reasoned that although the gravamen of Park's complaint was the University's decision to deny him tenure, that decision necessarily rested on communications the University made in the course of arriving at that decision. Such communications were in connection with an official proceeding, the tenure decisionmaking process, and so were protected activity for purposes of the anti-SLAPP statute. The dissent argued, in contrast, that all government action inevitably involves some form of communication, and courts must distinguish between instances when a claim challenges only the action itself and instances when a claim challenges the process that led to the action. Because the claim here, in the dissent's estimation, involved only the decision to deny tenure and not any arguably protected communications that preceded it, the trial court's ruling should have been affirmed.

The Court of Appeal's division is symptomatic of ongoing uncertainty over how to determine when "[a] cause of action against a person aris[es] from" that person's protected activity. (§ 425.16, subd. (b).) We granted review.

DISCUSSION

I. The Requisite Nexus Between the Claims an Anti-SLAPP Motion Challenges and Protected Activity

Anti-SLAPP motions may only target claims "arising from any act of [the defendant] in furtherance of the [defendant'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).) In turn, the Legislature has defined such protected acts in furtherance of speech and petition rights to include a specified range of statements, writings, and conduct in connection with official proceedings and matters of public interest. (Id. , subd. (e).)² We consider here the relationship a defendant must show between a plaintiff's claim and the sorts of speech on public matters the Legislature intended to protect.

A claim arises from protected activity when that activity underlies or forms the basis for the claim. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695 ; Equilon Enterprises v. Consumer Cause, Inc. , supra , 29 Cal.4th at p. 66, 124 Cal.Rptr.2d 507, 52 P.3d 685 ; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1114, 81 Cal.Rptr.2d 471, 969 P.2d 564.) 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." (City of Cotati , at p. 78, 124 Cal.Rptr.2d 519, 52 P.3d 695 ; accord, Equilon Enterprises , at p. 66, 124 Cal.Rptr.2d 507, 52 P.3d 685.) "[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute." (Navellier v. Sletten , supra , 29 Cal.4th at p. 89, 124 Cal.Rptr.2d 530, 52 P.3d 703 ; see City of Cotati , at p. 78, 124 Cal.Rptr.2d 519, 52 P.3d 695 [suit may be in "response to or in retaliation for" protected activity without necessarily arising from it].) Instead, the focus is on determining what "the defendant's activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Navellier , at p. 92, 124 Cal.Rptr.2d 530, 52 P.3d 703, italics omitted.) "The only means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)...." (Equilon Enterprises , at p. 66, 124 Cal.Rptr.2d 507, 52 P.3d 685, italics added.) In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.

Thus, for example, in City of Cotati v. Cashman , supra , 29 Cal.4th 69, 124 Cal.Rptr.2d 519, 52 P.3d 695, the plaintiff city filed a state suit seeking a declaratory judgment that its rent control ordinance was constitutional. The suit followed in time the defendant owners' federal suit seeking declaratory relief invalidating the same ordinance. In the state action, the defendants filed an anti-SLAPP motion alleging the suit arose from their protected activity of filing the federal suit. The motion, we explained, should have been denied because the federal suit formed no part of the basis for the state claim. The city's potential entitlement to a declaratory judgment instead arose from the parties' underlying dispute over whether the ordinance was constitutional, a dispute that existed prior to and independent of any declaratory relief action by the owners. (Id. at p. 80, 124 Cal.Rptr.2d 519, 52 P.3d 695.)

In contrast, in Navellier v. Sletten , supra , 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703, another case in which the defendant's protected activity was the prior filing of court claims, the prior claims were an essential part of the activity allegedly giving rise to liability....