Eddie Money + Employment Litigation = SLAPP?

Symmonds v. Mahoney, No. B283529 (D2d1 Feb. 1, 2019)

Eddie Money fired his Drummer, who has cancer and a bad back. Drummer sued under FEHA, alleging disability and age discrimination. Eddie filed an anti-SLAPP motion, alleging that the claims arose from his First Amendment Protected write to make his music without being hassled by the man. Which the trial court, quite sensibly, denied.

But the Court of Appeal reverses. 

This is another one of the many cases that address the issue currently before the Supreme Court in Wilson v. CNN: Do discrimination claims that touch on First Amendment-y industries address conduct in furtherance of free speech on an issue of public interest, and thus arise from protected activity under Code of Civil Procedure § 425.16(e)(4). As the Court here notes, there is a well-developed split on the issue. I’ve said my piece on this many, many times, so I won’t dwell on it.

Although I don’t agree with the Court’s analysis, I will say that this is probably the most cogent expression of the other side I’ve read. It doesn’t get caught in the “intent is irrelevant” trap that other courts have in applying the anti-SLAPP statute to discrimination claims and instead gets to the nub of the hard question. After grappling with the various lines of authority, the court boils the argument down to two essential points. 

First, in Navellier the Supreme Court held that we don’t look at the merits on prong one of the anti-SLAPP analysis. Thus, the fact that a first amendment defense to the claims would appear to be frivolous doesn’t matter.

Second, in Park the Supreme Court held that, in deciding what a claim arises from, we look at the facts that make up the elements of the claim. So, (1) because an element of a FEHA claim is an adverse employment action, and (2) because the facts that make up that element here are the drummer’s termination, the case arises from that decision, which is a form of artistic expression protected under (e)(4), notwithstanding the fact that plaintiff will also need to prove Eddie’s discriminatory intent. 

On the other hand, the idea that the selection of the drummer for Eddie Money’s touring band is a matter of public interest is ridiculous. The reasoning here is as bad as 2017’s Wayans decision—for which review has been granted—on which it partially relies. The fact that a claim somehow involves a defendant who could be arguably classified as a (quasi? pseudo? former?) celebrity does not mean that the conduct at issue is in connection with an issue of public interest. The question isn’t whether the public is interested in this person. It is whether to public is interested in the speech or conduct from which the claim arises.** The fact that a musician fired a member of his band, thirty or forty years after the band had some hit songs, shouldn’t to cut it.

In any event, the court remands for a prong two analysis of the merits. It further notes that not all of the complaint arises from the firing. There’s also some harassment and failure to accommodate allegations that Money never even tried to argue met prong one. So given the intra-claim parsing authorized by Baral, those allegations will survive regardless.

Reversed.

**Update: The day after this opinion came out, the Supreme Court dropped its opinion in Rand Resources, which makes this very point and warns against overgeneralizing when assessing the public issue requirement. We’ll see if that merits rehearing.