Recently, the California Supreme Court issued an opinion analyzing the nexus a defendant must show between a challenged claim and the defendant’s protected activity for the claim to be struck under the anti-SLAPP statute. In Sungho Park v. Board of Trustees of the California State University (May 4, 2017, S229728) __ Cal.5th __, the court held “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.” (Slip opn., pp. 1-2, original italics.)
The case arose out of the plaintiff professor’s discrimination allegations against the defendant University after being denied tenure. The professor sued the University under the California Fair Employment and Housing Act for national origin discrimination and failure to receive a discrimination free-workplace. (Slip opn., p. 2.) The trial court denied the University’s anti-SLAPP motion. The Court of Appeal reversed, reasoning “that although the gravamen of [the professor’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. . . .[and] were protected activity. . . .” (Id. at p. 3.)
The Supreme Court granted review. The court determined that “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 and petitioning activity.” (Slip opn., p. 1.) Thus, “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 of liability.” (Id. at p. 5.)
In this case, “the assertion [that] the University’s hiring decision is a matter of public interest does not suffice to bring that decision within the scope of protected activity. . . .” (Slip opn., p. 19.) “Whether the grant or denial of tenure to this faculty member is, or is not, itself a matter of public interest has no bearing on the relevant questions—whether the tenure decision furthers particular University speech, and whether that speech is on a matter of public interest. . . .” (Ibid.) Indeed, “none of the core purposes the Legislature sought to promote when enacting the anti-SLAPP statute are furthered by ignoring the distinction between a government entity’s decisions and the individual speech or petitioning that may contribute to them.” (Id. at p. 17.) The court disapproved of Tuszynska v. Cunningham (2011) 199 Ca.App.4th 257, “[t]o the extent Tuszynska [] presupposes courts deciding anti-SLAPP motions cannot separate an entity’s decisions from the communications that give rise to them, or that they give rise to, . . . .” (Ibid.)
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