Straight-Up Park

Laker v. Bd. of Trustees of the Cal. St. Univ., No. H044836 (D6 Feb. 28, 2019)

This SLAPP case is a pretty straight-up application of the Supreme Court’s Park decision. Plaintiff—a Professor at San Jose State—complained to various university officials about the adequacy of the University’s investigation of a Title IX complaint a student had made against his Department Chair. Professor claims that in response, the Department Chair and the University ginned up some phony sexual harassment investigations against Professor. He sues for defamation in the statements that were made as part of the investigations and for retaliation under the FEHA.

As an astute reader of Park would know, the defamation claims arise from the protected activity, but the retaliation claims generally do not. 

It’s well-established that a public university’s internal investigations are “official proceedings authorized by law.” And under Park, claims whose fundamental elements rely on statements made in or in connection with them “arise from protected activity” under Code of Civil Procedure § 425.16(e)(1) or (2). 

Professor tries to throw up an argument that the proceedings were a “sham” and thus “illegal” and there for outside the purview of the anti-SLAPP statute under Flatley. But if you have learned one thing from reading this blog, you know that Flatley arguments almost always fail because the standard is almost impossible difficult to satisfy. Which is the case here too.

Moreover, for essentially the same reason the claims arise from protected activity, the statements in the investigations are privileged under the absolute “official proceedings” privilege in Civil Code § 47(b)(3).

The retaliation claims, however, are different. The gist of a retaliation claim is that the defendant made some adverse employment action to unlawfully punish the speech of the plaintiff. Most employment decisions aren’t protected, even if communications will be used as evidence to prove up the plaintiff’s claim. That said, when the adverse decision is itself a speech act (e.g., I complained so you trashed my reputation in the press)—it can be protected. 

So most of the retaliation claim stands. The University’s official decision to launch an investigation is not itself speech, even if it is sometimes carried out through it. But to the extent that Professor’s theory is that University retaliated against him by defaming him in the investigations that’s going to be protected and privileged under the Civil Code for the same reason as the defamation claim.

Reversed in part.