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Park v. Board of Trustees of California State University

Supreme Court of California

May 4, 2017

SUNGHO PARK, Plaintiff and Respondent,

          Superior Court of Los Angeles County, No. BC546792, Richard E. Rico, Judge. Court of Appeal, Second Appellate District, Division Four, No. B260047.

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          Towle, Denison, Smith & Maniscalco, Towle Denison & Maniscalco and Michael C. Denison for Defendant and Appellant.

         Joseph T. Francke and Steven J. André for Californians Aware, First Amendment Project, Penelope Canan, Libertarian Law Council, Angie Morfin Vargas, City Watch, Inc., and Consumer Attorneys of California as Amici Curiae on behalf of Defendant and Appellant.

         Siegel & Yee, Jane E. Brunner and Alan S. Yee for Plaintiff and Respondent.

         Davis Wright Tremaine, Thomas R. Burke, Nicolas A. Jampol and Diana Palacios for First Amendment Coalition as Amicus Curiae on behalf of Plaintiff and Respondent.

         Briggs Law Corporation, Anthony N. Kim and Cory J. Briggs for San Diegans for Open Government and The Inland Oversight Committee as Amici Curiae on behalf of Plaintiff and Respondent.

         Duchrow & Piano and David J. Duchrow for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Respondent.


          [217 Cal.Rptr.3d 132] WERDEGAR, J.

          To combat lawsuits designed to chill the exercise of free speech and petition rights (typically known as strategic lawsuits against public participation, or SLAPPs), the Legislature has authorized a special motion to strike claims that are based on a defendant's engagement in such protected activity. (See Code Civ. Proc., § 425.16, subd. (a).) [1] We consider a question that has generated uncertainty in the Courts of Appeal: What nexus must a defendant show between a challenged claim and the defendant's protected activity for the claim to be struck?

         As we explain, 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 or petitioning activity. Rather, 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. Because the Court of Appeal ruled to the contrary, holding a

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claim alleging a discriminatory decision is subject to a motion to strike so long as protected speech or petitioning activity contributed to that decision, we reverse.

         Factual and Procedural Background

         Plaintiff Sungho Park was a tenure-track assistant professor at California State University, Los Angeles. He is of Korean national origin. In 2013, Park applied for tenure but his application was denied. He filed a discrimination charge with the Department of Fair Employment and Housing and, after receiving a right-to-sue letter, filed suit under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) for national origin discrimination and failure to receive a discrimination-free workplace.

         Defendant the Board of Trustees of the California State University (University) responded with a motion to strike. Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims " aris[e] from" protected activity in which the defendant has engaged. (§ 425.16, subd. (b); see § 425.16, subd. (e) [defining protected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 [109 Cal.Rptr.3d 329, 230 P.3d 1117]; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66-67 [124 Cal.Rptr.2d 507, 52 P.3d 685].) If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least " minimal merit." ( Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [124 Cal.Rptr.2d 530');">124 Cal.Rptr.2d 530, 52 P.3d 703]; see generally City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420 [205 Cal.Rptr.3d 499');">205 Cal.Rptr.3d 499, 376 P.3d 624]; Baral v. Schnitt (2016) 1 Cal.5th 376, 384 [205 Cal.Rptr.3d 475');">205 Cal.Rptr.3d 475, 376 P.3d 604].) The University argued Park's suit arose from its decision to deny him tenure and the numerous [217 Cal.Rptr.3d 133] communications that led up to and followed that decision, these communications were protected activities, and Park had not shown a sufficient probability of prevailing on the merits.

         The trial court denied the motion. It agreed with Park that the complaint was based on the University's decision to deny tenure, rather than any communicative conduct in connection with that decision, and that the denial of tenure based on national origin was not protected activity, so the University had not carried its burden of showing Park's suit arose from protected activity within the meaning of section 425.16, subdivision (e). Accordingly, the trial court did not reach the second step of the anti-SLAPP inquiry.

         A divided Court of Appeal reversed. The majority reasoned that although the gravamen of Park's complaint was the University's decision to deny him tenure, that ...

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