Superior Court of Los Angeles County, No. BC546792, Richard
E. Rico, Judge. Court of Appeal, Second Appellate District,
Division Four, No. B260047.
[Copyrighted Material Omitted]
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Denison, Smith & Maniscalco, Towle Denison &
Maniscalco and Michael C. Denison for Defendant and
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.
& Yee, Jane E. Brunner and Alan S. Yee for Plaintiff and
Wright Tremaine, Thomas R. Burke, Nicolas A. Jampol and Diana
Palacios for First Amendment Coalition as Amicus Curiae on
behalf of Plaintiff and Respondent.
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
& Piano and David J. Duchrow for California Employment
Lawyers Association as Amicus Curiae on behalf of Plaintiff
Cal.Rptr.3d 132] WERDEGAR, J.
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).)
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?
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
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.
and Procedural Background
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.
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.
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.
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 ...