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Wilson v. Cable News Network, Inc.

Supreme Court of California

July 22, 2019

STANLEY WILSON, Plaintiff and Appellant,
CABLE NEWS NETWORK, INC., et al., Defendants and Respondents.

          Superior Court Los Angeles County Superior Court No. BC559720. Mel Red Recana Judge.

         Second Appellate District, Division One B264944

          Law Offices of Lisa L. Maki, Lisa L. Maki, Jennifer Ostertag; Shegerian & Associates, Jill P. McDonnell and Carney R. Shegerian for Plaintiff and Appellant.

          FEM Law Group and F. Edie Mermelstein for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

          Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for California Taxpayers Action Network as Amicus Curiae on behalf of Plaintiff and Appellant.

          Mitchell Silberberg & Knupp, Adam Levin, Aaron M. Wais, Jolene Konnersman and Christopher A. Elliott for Defendants and Respondents.

          Davis Wright Tremaine, Kelli L. Sager, Rochelle Wilcox and Dan Laidman for Los Angeles Times Communications LLP, CBS Corporation, NBCUniversal Media, LLC, American Broadcasting Companies, Inc., Fox Networks Group, Inc., California News Publishers Association and First Amendment Coalition as Amici Curiae on behalf of Defendants and Respondents.

          Horvitz & Levy, Jeremy B. Rosen, Felix Shafir and Ryan C. Chapman for California Hospital Association as Amicus Curiae on behalf of Defendants and Respondents.


          KRUGER, J.

         Code of Civil Procedure section 425.16 (section 425.16), commonly known as the anti-SLAPP statute, allows defendants to request early judicial screening of legal claims targeting free speech or petitioning activities. We consider two questions concerning the application of the anti-SLAPP statute to certain claims arising in the employment context.

         The primary question before us concerns the statute's application to employment discrimination and retaliation claims. Here, a journalist alleges that his employer denied him promotions, gave him unfavorable assignments, and ultimately fired him for unlawful discriminatory and retaliatory reasons. Some courts of appeal, including the court in this case, have concluded the anti-SLAPP statute cannot be used to screen claims alleging discriminatory or retaliatory employment actions. We hold otherwise. The statute contains no exception for discrimination or retaliation claims, and in some cases the actions a plaintiff alleges in support of his or her claim may qualify as protected speech or petitioning activity under section 425.16. In such cases, the plaintiff's allegations about the defendant's invidious motives will not shield the claim from the same preliminary screening for minimal merit that would apply to any other claim arising from protected activity. The defendant employer in this case has shown plaintiff's claims arise in limited part-though not in whole-from protected activity. The employer is therefore entitled to a determination of whether those limited portions of plaintiff's claims have sufficient potential merit to proceed.

         The second question concerns the application of the anti-SLAPP statute to the journalist's claim that defendant defamed him by privately discussing the alleged reasons for his termination with potential employers and others. We conclude that this claim need not be screened for merit because these privately communicated remarks were not made in connection with any issue of public significance, as the statute requires. (See § 425.16, subds. (a), (b)(1), (e)(4).) We thus affirm in part, reverse in part, and remand for further proceedings.


         Plaintiff Stanley Wilson began working for Cable News Network, Inc., in 1996, and wrote and produced stories for the network for more than 17 years. During his tenure, Wilson covered matters of general public importance, including multiple presidential elections, the Bush v. Gore controversy, the September 11, 2001 attacks, and Hurricane Katrina. For his work, Wilson attained recognition in the field, receiving three Emmy awards and many other journalism honors.

         In 2004, Wilson, who is African American and Latino, began raising concerns about the network's treatment of African-American men. He also took a five-week paternity leave after the birth of his twin children in 2013. According to Wilson, the network rewarded him with menial assignments and denied him promotions in favor of younger and less experienced White candidates.

         Wilson's tenure came to an end in 2014, after Wilson drafted a story covering the unexpected retirement of Los Angeles County Sheriff Lee Baca. An editor reviewing the draft flagged several passages that appeared similar to another news organization's published story. Citing concerns about plagiarism, the network placed Wilson on leave of absence and ultimately fired him.

         Wilson filed suit against Cable News Network, Inc., various affiliated corporate entities, and his supervisor. (For simplicity's sake, we will refer to defendants collectively as CNN.) Wilson's complaint contains seven causes of action, six of which challenge CNN's alleged discrimination and retaliation. Specifically, Wilson alleges he was denied promotions, given unfavorable assignments, and ultimately fired because of his race and other protected characteristics, [1] as well as in retaliation for exercising his right to make complaints about discrimination and his right to take parental leave. (See Gov. Code, §§ 12940, 12945.2.) He further alleges wrongful termination in violation of the public policy against employment discrimination and retaliation. (See Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1089-1097.) In his seventh and final cause of action, Wilson alleges that CNN defamed him by telling prospective employers and others that Wilson had committed plagiarism in violation of CNN's standards and practices.

         CNN filed an anti-SLAPP motion. (§ 425.16.)[2] It argued that the first six causes of action arose, in whole or in part, from Wilson's termination, and CNN's decision to fire Wilson was in furtherance of its right to determine who should speak on its behalf on matters of public interest. CNN further argued that the defamation cause of action arose from protected speech because its statements as to whether Wilson met CNN's editorial standards in reporting on a matter of public interest furthered CNN's exercise of free speech rights. The trial court agreed with these arguments, concluded that Wilson had not shown any of his claims had minimal merit, and granted the motion.

         A divided Court of Appeal reversed. (Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822, review granted Mar. 1, 2017, S239686 (Wilson); see id. at p. 840 (dis. opn. of Rothschild, P. J.).) The majority held the trial court erred in granting the motion to strike Wilson's employment discrimination and retaliation claims because the claims arose from “defendants' allegedly discriminatory and retaliatory conduct against him, not the particular manifestations of the discrimination and retaliation, such as denying promotions, assigning him menial tasks, and firing him.” (Id. at p. 836.) Reasoning that discrimination and retaliation do not qualify as protected activity, even when committed by a news organization, the majority concluded the anti-SLAPP statute did not apply. (Id. at pp. 834-837.) The dissent disagreed, urging that the claims arose from CNN's decision about who would report the news on its behalf, a decision in furtherance of CNN's exercise of free speech rights. (Id. at pp. 840-842 (dis. opn. of Rothschild, P. J.).) The majority and dissent likewise disagreed over the treatment of Wilson's defamation claim: The majority thought the trial court was wrong to strike the claim, while the dissent took the opposite view. (See id. at pp. 837-840; id. at pp. 845-846 (dis. opn. of Rothschild, P. J.).)

         The Court of Appeal's decision in this case added to a growing divide over whether, in an employment discrimination or retaliation case, the employer's alleged motive to discriminate or retaliate eliminates any anti-SLAPP protection that might otherwise attach to the employer's employment practices.[3] We took review to answer that question and to address the application of the anti-SLAPP statute to Wilson's related defamation claim.


         Enacted by the Legislature in 1992, the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. (See § 425.16, subd. (a); Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) To that end, the statute authorizes a special motion to strike claims “arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)

         A court evaluates an anti-SLAPP motion in two steps. “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. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least ‘minimal merit.' ” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) If the plaintiff fails to meet that burden, the court will strike the claim. Subject to certain exceptions not relevant here, a defendant that prevails on a special motion to strike is entitled to attorney fees and costs. (§ 425.16, subd. (c).)

         Because the Court of Appeal determined CNN had failed to carry its initial burden, we are here concerned only with the first step of the analysis. The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. 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.” (Park, supra, 2 Cal.5th at p. 1060.) To determine whether a claim arises from protected activity, courts must “consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063.) Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of “ ‘act[s]' ” protected by the anti-SLAPP statute. (§ 425.16, subd. (e); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.)

         CNN relies on section 425.16, subdivision (e)(4), which protects “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”[4] Whether Wilson's claims arise from activity protected by this provision is a matter we consider de novo. (Park, supra, 2 Cal.5th at p. 1067), evaluating the context and content of the asserted activity ( Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 144-145, 149).


         Wilson's intentional discrimination and retaliation claims are the centerpiece of his complaint. To prove unlawful discrimination, Wilson must show he was a member of a protected class; was performing competently in the position he held, and suffered an adverse employment action such as termination or demotion; and that other circumstances suggest a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)[5] To prove unlawful retaliation, Wilson must likewise show CNN subjected him to adverse employment actions for impermissible reasons-namely, because he exercised rights guaranteed him by law. (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [retaliation under the Fair Employment and Housing Act]; Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 491 [retaliation for taking family leave].) Finally, Wilson's wrongful termination claim turns on proof that Wilson was terminated and the reason for the firing violates public policy. (Gantt v. Sentry Insurance, supra, 1 Cal.4th at pp. 1089-1090.)[6] In sum, all of Wilson's employment-related claims depend on two kinds of allegations: (1) that CNN subjected Wilson to an adverse employment action or actions, and (2) that it took these adverse actions for discriminatory or retaliatory reasons. The critical threshold question before us is whether such claims can ever be said to be based on an “act... in furtherance” of speech and petitioning rights under section 425.16, subdivisions (b)(1) and (e)(4). The Court of Appeal answered no. We disagree.


         Whether it is unlawful for a person to perform a particular action or engage in a particular activity often depends on whether the person has a good reason for doing it-or, at least, has no bad reason for doing it. For example, it is ordinarily perfectly lawful for a person to possess a screwdriver, but to possess one for the purpose of burglarizing a house is a criminal offense. (See Pen. Code, § 466.) It is likewise lawful to file a lawsuit-even a meritless one-but to do so for the sake of impoverishing an enemy constitutes the tort of malicious prosecution. (See Bertero v. National General Corp. (1974) 13 Cal.3d 43, 49-51.) The laws proscribing intentional discrimination and retaliation in employment and other areas belong to this category of prohibitions. It is ordinarily perfectly permissible for an employer to decide not to hire, not to promote, or to fire an employee. The employer may not, however, act based on “the race, religious creed, color, national origin, ” or other protected characteristic of the employee (Gov. Code, § 12940, subd. (a)), or because the employee has exercised certain rights guaranteed by law, including the right to complain about discrimination (e.g., id., subd. (h)).

         This feature of the antidiscrimination and antiretaliation laws has led some appellate courts, including the Court of Appeal in this case, to conclude that discrimination and retaliation claims fall outside the scope of the anti-SLAPP statute. The appellate court here reasoned that because the adverse employment actions Wilson alleged would have been perfectly lawful in the absence of CNN's discriminatory or retaliatory motive, Wilson's claims must be based on CNN's unprotected discrimination or retaliation-and not “the particular manifestations of the discrimination and retaliation, such as denying promotions, assigning him menial tasks, and firing him.” (Wilson, supra, 6 Cal.App.5th at p. 836, rev. granted.) On this view, it does not matter that one of these ‚Äúparticular manifestations‚ÄĚ might otherwise qualify as ...

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