Okorie v. L.A. Unified Sch. Dist., No. B268733 (D2d1 Aug. 16, 2017)
This anti-SLAPP opinion is problematic. But to get to the bottom of it, we need to talk about how to harmonize the California Supreme Court’s recent anti-SLAPP decisions in Baral and Park.
Before Baral and Park, in looking to whether Code of Civil Procedure § 425.16(b)(1)’s “arising from protected activity” test was satisfied, there was some confusion about “mixed claims,” i.e., claims that seemingly arose from both protected and unprotected activity. Courts more-or-less agreed that allegations including merely “incidental activity” didn’t meet the test. And they also more-or-less agreed that, in contrast, a claim did arise from protected activity when the protected conduct was the “gravamen” or “principal thrust” of the claim. But what they didn’t agree on was: (1) what happens when a cause of action has multiple thrusts or gravamens*; and (2) what gravamen really means in the context of the arising from test.
Baral answered the first question. There, the Court rejected the so-called Mann rule, and held that an anti-SLAPP motion could be directed to a claim, not just an entire count or cause of action. The Court described a claim pragmatically, as a set of “particular alleged acts giving rise to a claim for relief.” These are my own words, but what the Court is getting at is a factually and legal distinct theory of liability, regardless of how the complaint is structured.
In reaching that rule, the Court distinguished claims from “counts”—which is just a contrivance based on the structure of a complaint—and also rejected more formalistic ways to define a claim, including by reference to the primary rights doctrine. Baral went on to say that, if non-incidental parts of a claim arise from protected activity, the burden shifts to plaintiff to establish a likelihood of prevailing on that particular claim, and if that burden is not met only that claim, not the rest of the “cause of action” gets struck.
And then Park addressed the second question. The Court said that “a claim” only “arises from protected activity” when that activity “underlies or forms the basis for the claim,” which occurs when the protected activity supplies key elements of the claim and consequently forms the basis for liability. Under Park, when the claim is based on protected activity, the arising from test is met, but when protected activity is merely evidentiary support for a claim based on something else, it isn’t. Park thus clarified the boundary between what was previously called the “gravamen” of the claim—the part that provides the essential harm-causing elements—and the “incidental” or “collateral” parts—which merely provide evidence or context of the greater elements.
So, harmonizing Baral and Park, when an anti-SLAPP motion is addressed to a seemingly “mixed” case, a court should: (1) break the case down into essential “claims”—i.e., factually and legally distinct theories of liability; (2) ask which claims have key elements that are satisfied by the alleged protected activity; (3) for these claims only, ask if plaintiff has pleaded an adequate claim made a prima facie showing of evidence; and then (4) if not, strike those claims only as a SLAPP.
Which brings us to this case. Plaintiff is a Teacher of West African nationality. A student apparently reported to the police that Teacher had molested him many years prior. After the police reported the allegations to Defendant, the employing School District, the District put Teacher into a non-teaching admin role and began to conduct an investigation. The District asked Teacher to return any school-owned computers as part of the investigation. But when Teacher claimed he couldn’t find them, the District, in conjunction with the police, served a search warrant on Teacher’s residence.
Teacher says this was all bunk. He claims that a principal at his school harassed him, wrote him up on disciplinary charges, subjected him to a meritless investigation, and made false statements about the molestation allegations to parents. In his take, the search warrant was improper and during the execution, he was subjected to improper and humiliating conduct, such as being asked in front of his family whether he carried the Ebola virus.
Interestingly, Teacher’s complaint does not allege any kind of wrongful termination. Instead, he alleges an “accumulation” theory, where all of these slights built up to cause him “humiliation and embarrassment.”
Teacher’s complaint sought relief under the Fair Employment and Housing Act for harassment, retaliation, and discrimination on the basis of his race, nationality, and gender, as well as claims for IIED and for defamation and a federal claim under § 1983 based on the search.
The complaint, suffice it to say, was not a portrait of clarity. It lumped together all the facts in a common set of allegations and then pled rather conclusory element based counts stating the legal grounds for liability. The District filed an anti-SLAPP motion, which the trial court granted as to the entire complaint.
On appeal, the Court declines to follow Baral’s instruction to parse the complaint into claims. It notes that Teacher’s claims “are not well delineated and are even enmeshed . . . within [one] another[.]” Based on this lack of focus, the Court finds that notwithstanding Baral it can resort to a pre-Baral “gravamen” test. Indeed, it doesn’t even look to the gravamen of each cause of action, a la Mann.
In doing so, the court parts ways with a post Baral case—Sheley v. Harrop, 9 Cal. App. 4th 1147 (2017)—which says “[a]fter Baral, when deciding whether claims based on protected activity arise out of protected activity we do not look for an overall or gestalt ‘primary thrust’ or ‘gravamen’ of the complaint or even a cause of action as pleaded.” So the court here looks to the gravamen of the whole shebang, which it reads to be that Plaintiff was humiliated by various communicative acts by the District and its employees. Since most of those acts were in connection with the District’s internal investigation, the Court of Appeal finds that the whole complaint arises from activity protected under § 425.16(e)(2), which protects speech in connection with official proceedings.
The court then turns to plaintiff’s showing on the merits. There, it does somehow manage to group Plaintiffs’ claims, holding that his discrimination, retaliation, harassment, and IIED claims failed for want of evidence showing that the District had the requisite intent, and that the § 1983 claim failed because the only defendant sued—the District—was immune from money damages under the Eleventh Amendment. Nor would the Court permit Teacher to amend to add a different defendant, finding that permitting him to do so would be anathema to the purpose of the anti-SLAPP statute.
Presiding Justice Rothschild dissents in part. He says the court could and should have followed Baral and Sheley, which he reads as killing off the “gravamen” analysis in its entirety. And since a number of the acts that underlie plaintiffs claim, such as the administrative reassignment, are clearly not communicative, had a proper Baral analysis been conducted, Justice Rothschild would hold that at least some of the claims should have survived.
Affirmed.
On a very basic level, one thing that I don’t get is that the court didn’t seem to have much difficulty parsing the second prong re the merits on at least a per-cause-of-action basis. So I’m not sure why it couldn’t do that for the arising from analysis.
Moreover, the four reasons the majority gives to evade Baral don’t make sense. Or more specifically, the court makes mostly accurate observations about Baral, but the rule it reaches don’t really follow from them.
First, the court asserts that Baral rejected of an analogy to a primary right as the core unit of SLAPP-ability. Which is true. But the court fails to note that the primary right rule was rejected in favor of applying the analysis to each “claim,” defined pragmatically, which is precisely what it is refusing to do here.
Second, the court says that although Baral held that an anti-SLAPP motion could reach distinct claims within pleaded counts, the Court did not require an analysis that parses out claims. Maybe, if you read Baral very narrowly and literally. But I don’t think it’s a fair reading of the rationale of Baral to suggest that trial courts retain the discretion to employ a totality-based analysis for mixed claims when they find it continent to do so.
Indeed, if a defendant could just attack the whole complaint because it’s general idea implicates protected activity and then kill the entire lawsuit, why would it ever take the approach outlined in Baral? Nor would the structure of the analysis work: Baral says that after the burden shifts to the plaintiff, the plaintiff needs to show a likelihood of success for only the parts of the claim that are based on protected activity, and then only those parts get struck. If the motion doesn’t parse those out for the “arising from” test, why and how can the plaintiff parse out the merits in meeting its burden under the second step. (Which, FWIW, wasn’t even required under the Mann rule, since Mann required only factual support for some actionable part of the cause of action, based on protected activity or not.)
Third, the court notes that that Baral reached its result based in part on analogy to a traditional motion to strike, which can be directed at a part of a pleading. Which is true. And for an ordinary motion to strike, the notice needs to say what striking is sought. Also true. Here, the District—invoking pre-Baral law—didn’t do that.
Ok. But why that inure to the District’s benefit by permitting it to file an omnibus anti-SLAPP motion and argue that since the “principal thrust” of the whole complaint gets at protected activity, the whole case should be struck? It seems like post-Baral, the moving party’s failure to identify what stuff is implicated and needs to be stuck should cut against the moving party, not the plaintiff.
Finally, the court notes that Baral and cases before it were concerned with artful pleading to evade the anti-SLAPP statute. And indeed they were. But the greater point of Baral and Park is to focus the anti-SLAPP inquiry on each claim based on allegations of protected activity and the elements of those claims as the fundamental unit of analysis.
By doing so, courts can avoid concerns of both underbreadth and overbreadth in the application of the statute. An overbroad “arising from” analysis that results in dismissal of otherwise unprotected claims is chilling legitimate petitioning activity. That is just as anathema to the purpose of the anti-SLAPP regime as an underbroad analysis that lets protected allegations skate by simply because Plaintiff jammed them in with unprotected activity on which she can show a likelihood of success.
It seems like some of the majority’s difficulty here is that the standard changed pending the appeal. The trial court relied on the Court of Appeal decision in Baral, which was basically a Mann analysis. No doubt, in moving, the District relied on that standard when it framed its motion. And then the majority found it too hard to unwind the arguments and do the analysis in the way the Supreme Court’s Baral opinion said it should be done.
But given the significant change the Supreme Court made in Baral, perhaps it would have been better to reverse and remand, giving the District a shot to make a Baral-informed motion and the trial court a shot to do a Baral-oriented analysis. I get that there there’s a distaste for a remand for do-over from a judicial economy standpoint—especially when the do-over will likely give rise to another interlocutory appeal. But it’s better than being wrong and dismissing what appear to be, post-Baral, claims that should not be struck.
Two final things.
First, much of debate between the majority and dissent is over whether Sheley correctly followed Baral in fully doing away with a gravamen-oriented analysis. But I’m not so sure Sheley actually did that. What Sheley was focused on was, per Baral, whether the test could be applied on a “gestalt” basis “to the entire complaint or individual causes of action.” It thus referred to the test as the “gestalt principal thrust or gravamen analysis” several times. So it’s not all that clear that a gravamen analysis, when specifically applied to a “claim” is inconsistent with Baral and Park. When done claim-by-claim, Park’s elements-based analysis is not materially different than the gravamen analysis as it was properly applied pre-Park. Indeed, Park discusses with approval some earlier cases, like Martin v. Inland Empire Utilities Agency, 198 Cal. App. 4th 611 (2011), that use the gravamen terminology. Mostly, it’s just a naming thing.
Finally, the application to the § 1983 claim is wrong. The case law is clear that serving a warrant is not protected activity. See Anderson v. Geist, 236 Cal. App. 4th 79, 87 (2015). And a cop’s demeaningly asking someone if he carries Ebola during a warrant service isn’t either.
Moreover, the reason the claim failed is that Teacher incorrectly named an immune defendant. Although the court says the anti-SLAPP statute prevents an amendment to fix that mistake, that’s not right. It is true that a plaintiff can’t amend to wiggle out from an impending finding that its claim arises from protected activity. On the other hand, under the weight of the authority, amendment is appropriate to cure a mere pleading defect that might cause plaintiff to fail the second step, because that type of amendment does not implicate the interests protected by the anti-SLAPP statute. See Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 872 (2009).
*Apparently the plural of gravamen is gravamens. Had to look that one up.
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