Metropolitan News-Enterprise


Friday, May 5, 2017


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S.C. Takes Restrictive View of Anti-SLAPP Law

Says Motion Must Be Directly Hinged to Speech or Petitioning Activity;

Communications Leading Up to Denial of Tenure Won’t Suffice


By a MetNews Staff Writer


The California Supreme Court yesterday issued a unanimous decision that will pare the number of anti-SLAPP motions that are granted, holding that protected speech or petitioning activity forming the basis for the motion may not be tangential to the action.

Justice Kathryn Werdegar wrote:

“[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.”

The case arose from an action filed by Sungho Park, whose national origin is Korean. He sued the Board of Trustees of the California State University for allegedly denying him tenure on its faculty based on his ethnicity.

Judge Rico’s Rulings

Cal State brought an anti-SLAPP motion in Los Angeles Superior Court, arguing that communications leading up to the decision to deny tenure were protected. Judge Richard E. Rico denied the motion, holding that “the gravamen of the complaint was not defendant’s communicative conduct in denying plaintiff tenure or his grievance.”

He said Park’s action “was based on the act of denying plaintiff tenure based on national origin,” noting:

“Plaintiff could have omitted the allegations regarding communicative acts or filing a grievance and still state the same claims.”

The anti-SLAPP statute, Code of Civil Procedure §425.16, provides that a motion to strike must be based on the defendant’s free-speech or petitioning activity “in connection with a public issue.” Rico found that Cal State did not show “that the denial of tenure is an issue of public interest.”

Justice Collins’s Opinion

Div. Four of this district’s Court of Appeal reversed, in a 2-1 decision, on Sept. 1, 2015. Writing for the majority, Justice Audrey Collins declared that “the gravamen of the complaint arises from protected activity,” satisfying the first prong of the anti-SLAPP statute, and the case must be remanded for Rico to consider the second prong: whether Park could show “a reasonable probability of prevailing on the merits of his claims.”

Presiding Justice Norman Epstein dissented, saying:

“The tenure decision involves a process that necessarily requires communications and, in this case, formal written evaluations of the academic candidate. But reviewing courts must be careful not to conflate the process by which a decision is made with the ultimate governmental action itself.”

The action, he said, was “the decision to deny tenure to Professor Park, commenting:

“While the process which led to it may be protected by various privileges and immunities, the act itself is not a basis for application of the anti-SLAPP statute.”

High Court Reverses

The high court agreed with Rico and Epstein, reversing the Court of Appeal.

“The tenure decision may have been communicated orally or in writing, but that communication does not convert Park’s suit to one arising from such speech,” Werdegar wrote, expressly adopting Rico’s analysis that Park could have brought his acting without any reference to communications.

“We have no occasion to consider the scope of free speech protection for professors, the potential liberties at stake in a university’s choice of faculty,” the jurist said, declaring that “[w]e hold simply that the assertion the University’s hiring decision is a matter of public interest does not suffice to bring that decision within the scope of protected activity defined by” the anti-SLAPP statute.

The case is Park v. Board of Trustees of the California State University, 17 S.O.S. 2347.


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