California Court of Appeals, Second District, Seventh Division
Order Filed Date 12/11/13
APPEAL from an order of the Superior Court of Los Angeles County, No. BC480825 Ramona G. See, Judge.
Kelly Drye & Warren, Keri E. Campbell and Sarah L. Cronin, for Appellant and Defendant.
Allred, Maroko & Goldberg, Gloria Allred, Michael Maroko and John Steven West, for Respondent and Plaintiff.
Kyle Hunter filed a discrimination complaint alleging that CBS Broadcasting refused to hire him as a weather news anchor because of his gender and age. CBS filed a motion to strike the complaint pursuant to Code of Civil Procedure section 425.16 arguing that its selection of a newscaster qualified as an act in furtherance of its free speech rights. The trial court denied the motion, concluding that Hunter’s claims did not arise from CBS’s hiring decision, but rather from its discriminatory employment practices. We reverse the order and remand for the trial court to consider whether Hunter has demonstrated a reasonable probability of prevailing on the merits of his claims.
FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of Hunter’s Complaint
On March 15, 2012, plaintiff Kyle Hunter filed an employment discrimination complaint alleging that two local CBS television stations – KCAL and KCBS – had “repeatedly shunned [him] for numerous on-air broadcasting positions... due to... his gender and his age.” The complaint alleged that, in 2010, KCBS chose not to renew the contract of its then-weather anchor Johnny Mountain, which was “part of [a] plan to turn prime time weather broadcasting over to younger attractive females.”
Although Hunter expressed interest in “filling [Mountain’s] vacancy, ” KCBS decided to hire Jackie Johnson, a “young attractive female” who had previously served as the weather anchor on KCAL’s prime time newscast. After learning that Johnson had been hired to replace Mountain at KCBS, Hunter notified KCAL that he would like to be considered for Johnson’s former anchor position. KCAL, however, began “quietly interviewing.... young, attractive females to [replace Johnson]” and told Hunter “there was not ‘an opening for [him] now.’”
In May of 2010, KCAL posted a “sham” notice regarding its weather anchor position. At the time it posted the notice, KCAL had already hired “an attractive younger female” named Evelyn Taft, “whose age and gender were key considerations in the hiring decision.” When Hunter learned about Taft’s hiring, he contacted the station manager and was told that he had not been considered for the position because KCAL “‘catered to... male viewers’” and that Hunter “‘wouldn’t be the type men would want to look at.’”
Hunter’s complaint alleged that he was “far more qualified, and far more experienced” to serve as a weather anchor than either Johnson or Taft. The complaint further alleged that Hunter had been forecasting and broadcasting the weather for over 23 years, had won several prestigious awards and was certified by the American Meteorological Society (AMS). Taft, on the other hand, had only “two or three years of experience, ” was not certified by the AMS and “ha[d] not won any broadcast awards.”
The complaint asserted two causes of action against CBS for violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)). The first claim alleged that KCBS and KCAL had “adopted a policy of filling vacant prime time on air weather broadcast positions with attractive females, and of refusing to hire males to permanently fill those positions.” The second claim alleged that KCBS and KCAL had “adopted a policy of filling vacant prime time on air weather broadcast positions with individuals under the age of 40, [and] of refusing to hire individuals over 40 to permanently fill those positions.” The complaint asserted that CBS’s “[gender] and age based polic[ies], and [its] resulting employment decisions, violated the prohibition against gender [and age] discrimination contained in  Government Code [section] 12940.”
B. CBS’s Motion to Strike the Complaint Pursuant to Code of Civil Procedure Section 425.16
1. Summary of CBS’s motion to strike and supporting evidence
On May 29, 2012, CBS filed a motion to strike Hunter’s complaint pursuant to Code of Civil Procedure section 425.16. CBS contended that Hunter’s claims were based on its selection of on-air weather reporters and that such conduct qualified as protected activity within the meaning of section 425.16, subdivision (e). It further contended that Hunter could not make a prima facie showing that he had not been hired to fill the KCBS or KCAL weather anchor vacancies as a result of his gender or age.
In support of its motion, CBS submitted a declaration from Scott Diener, who was the Vice President and News Director of KCBS and KCAL. Diener’s declaration stated that the “duopoly” of KCBS and KCAL [collectively “the duopoly”] made-up the “nation’s largest local television news operation.” According to Diener, the “number one reason why people watch[ed] the local news” was to obtain information about the weather. As a result, the duopoly’s weather anchors were “local celebrities” who had a significant effect on newscast ratings.
Diener, whose duties included “recruiting and hiring... staff members, ” explained that selecting on-air news personnel, and the weather anchor in particular, was “one of the most critical decisions in putting together a news team. The anchor must not only be knowledgeable and reliable with respect to the weather forecasts, but also must be a personality whom people want to invite into their home on a daily basis. The weather anchor has to inspire confidence and trust while being likeable and inviting to the public.”
Diener stated that when making a hiring decision for an on-air position, he normally reviewed “the individual’s resume and demo reel.” If Diener believed the individual was sufficiently talented, he would then “interview them and have them audition, ” which would include a “mock weather segment.” Diener asserted that the three primary qualifications he considered when evaluating “an on-air [weather] position” were: (1) meteorology background and experience; (2) on air presence; and (3) chemistry with other members of the news team.
Diener explained that, shortly after he became the duopoly’s news director in January of 2010, he received an email from Hunter stating that he would like to be “considered for any available weather anchor positions – even fill-in work.” Diener reviewed Hunter’s “demo reel” and “did not believe he had the talent, skill or on-air presence to be an on air weather broadcaster in the Los Angeles market.” Diener also felt that Hunter’s presentation was not “polished” and that his “on-air persona was hokey and over the top.” Over the next two months, Hunter continued to send Diener numerous emails “with requests for employment, brochures, links to his demo reels [and] invitations to lunch and dinner.”
Diener also explained why the duopoly had selected Johnson and Taft to serve as its two prime time weather anchors. According to Diener, he had chosen Johnson to fill Johnny Mountain’s vacated position at KCBS based on her six years of experience as the prime time weather anchor at KCAL. After promoting Johnson to KCBS, the duopoly began searching for a candidate to fill Johnson’s vacancy at KCAL. Diener received dozens of submissions for the opening, which he narrowed to eight candidates consisting of five men and three women. Hunter was not considered. The two finalists were Evelyn Taft, a female under the age of 40, and Jim Castillo, a male over the age of 40. Taft had a degree in broadcast journalism from the University of Southern California and had previously worked as a weather anchor in Santa Maria and Salinas, California. ...