Tuszynska Falls

Park v. Board of Trustees of Cal. State Univ., No. S229725 (Cal. May 4, 2017)

Once in a while, a lawyer gets to feel vindicated . . . . 

I was pretty critical of this anti-SLAPP case when the Court of Appeal decided it in 2015. The gist of it is that Plaintiff claims he was denied tenure because he is Korean. The University claimed, however, that because the tenure process is an “official proceeding,” Plaintiff’s claim arose from it, and was thus subject to an anti-SLAPP motion. While the trial court said no, the Court of Appeal bought it. But now the California Supreme Court reverses in a unanimous decision by Justice Werdegar.

As the Court here explains, the key question in the anti-SLAPP statute’s “arising from test” is whether the plaintiffs claim is “based on” speech or petitioning. Viz. whether speech or petitioning are essential to the elements of plaintiffs claim and “consequently form the basis of liability.” When speech or petitioning are only evidence related to liability, the test is not satisfied.

To illustrate, let’s oversimplify the facts a bit. Plaintiff is a Korean-American applying for tenure at a public university. During his tenure committee meetings, someone calls him a racial epithet. He is subsequently denied tenure and sues under FEHA for racial discrimination. There shouldn’t be an anti-SLAPP motion there, even if his complaint quotes the epithet.

Why? Because the epithet is not the essence of the claim, which is discriminatory treatment and intent. The statement might be evidence of the University’s treatment or intent, but that’s not enough for the claim to arise from the statement. Notably, the result might be different had Plaintiff sued for an injury caused by the statement itself, like defamation or IIED. But the statement isn’t the claim here.

The Court cuts through this pretty quickly. And in doing so it nukes some of the objects of my past ire. Including not least Tuszynska v. Cunningham, 199 Cal. App. 4th 257, 266 (2011)—which I explained was based on a egregious misreading of an earlier Supreme Court case. It also disapproves DeCambre v. Rady Children’s Hospital-San Diego, in which the court confused the gravamen of a plaintiff’s discrimination claim with a defendant’s defense.

The Court does sidestep one narrow issue, basically because the University didn’t cleanly argue it. Unlike the statements made during the tenure process, the decision itself, was, in fact, the gravamen of the claim here. So if the tenure decision itself is some kind of “conduct in furtherance” classified as protected activity under § 425.16(e)(4), the “arising from” test might be met. But that has to wait another day. Indeed, it’s currently before the Court in Wilson v. CNN, in which review was granted this March, with the Court suspending briefing pending the result in this case.

Interestingly, the Court briefly addresses the case on opposite side of the split in Wilson—Hunter v. CBS—mostly to distinguish how the University didn’t raise the (e)(4) argument here. But the Court makes clear that it is not expressing “any opinion concerning wither Hunter . . . itself was correctly decided.” So my potential vindication on that point will have to wait.

Court of Appeal reversed.