COLLINS, J.—
Plaintiff Sungho Park sued his former employer, defendant Board of Trustees of the California State University (CSU), alleging that CSU discriminated against him based on his national origin when it denied his application for a tenured faculty position and consequently terminated him. Park's complaint sought damages and an injunction awarding him a tenured position. CSU moved to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute.
Park filed a verified complaint on May 27, 2014, alleging two causes of action against CSU for discrimination based on national origin and failure to prevent discrimination and seeking damages and injunctive relief to "restore his rights and privileges as a tenured professor." Park alleged he was hired by CSU in 2007 as an assistant professor in the Charter College of Education, Division of Special Education and Counseling, at California State University, Los Angeles (Cal State LA). CSU is a state public entity that owns and operates Cal State LA. Park was hired as a tenure-track faculty member; his duties included teaching credential and graduate programs, coordinating a disabilities credential program, researching and publishing, participating in committees, presenting at conferences, and working with local community groups. Park, whose national origin is Korean, specialized in "studying Korean parents' views of special education."
Park applied for tenure at Cal State LA in January 2013. CSU denied his application in May 2013. According to Park, CSU "justif[ied] its decision with ambiguous allegations that Park's performance in the area of professional achievement was unsatisfactory based on his failure to publish enough papers, while awarding tenure to Caucasian faculty with the same or fewer number of publications." In fact, he alleged, the denial of tenure to Park was "motivated by prejudice" based on his national origin.
Specifically, Park claimed he "met or exceeded the requirements under CSU policies for promotion to the rank of Associate Professor," a tenured position. Under CSU's policies and procedures for faculty retention, tenure or promotion (RTP), a faculty member is evaluated in three categories: (1) educational performance; (2) professional achievement; and (3) contributions to the university. The policy provides that "in all categories, emphasis shall be placed on quality and effectiveness, and not only on quantity of performance." Park was rated as satisfactory in the first and third categories, but was denied tenure based on his rating in professional achievement. Park complains that he was "only credited with having published two papers when he actually published four." He also alleges that at least three Caucasian faculty members in his division received tenure with "a publication record similar to or inferior to his." He contends that he was "criticized" for publishing in certain journals and for publishing in the last two years before seeking tenure, but that Caucasian colleagues did not receive the same criticism for the same conduct. Park further alleged that he was "not given credit" for other professional activities that should have counted toward his professional achievement rating.
Park filed a grievance challenging the denial of tenure pursuant to CSU's collective bargaining agreement (CBA). Following a grievance hearing, CSU "denied his grievance on the basis that his performance was found unsatisfactory in the area of professional achievement."
CSU moved to strike Park's complaint pursuant to section 425.16, arguing that the complaint was "based on alleged discriminatory communicative acts of [CSU] within the [RTP] process of [Cal State LA], the subsequent grievance process, and alleged statements of Cal State LA personnel related thereto."
In support of its motion, CSU presented the declaration of Dr. Philip LaPolt, associate vice president for research and academic personnel at Cal State LA, discussing the general RTP process and the specific reviews provided to Park. CSU also provided excerpts from its policies regarding the RTP process and documents from Park's personnel file, including performance reviews and RTP recommendations from 2008 through 2013, the letter from the university president in 2013 ultimately denying Park's tenure application, and the grievance report denying Park's grievance.
These materials provided additional pertinent details regarding the RTP process. CSU's written personnel policies provide for the evaluation of faculty using the following evaluative terms: "Outstanding, Commendable, Satisfactory, Needs Improvement, and Unsatisfactory." "To receive a favorable recommendation for tenure and promotion at least satisfactory performance must be demonstrated in all three categories;" conversely, a rating of unsatisfactory in any category "shall entail a negative recommendation for retention, tenure, or promotion." At the time of candidacy for tenure, "a faculty member is expected to have demonstrated substantive achievements in
Probationary faculty typically are considered for tenure during their sixth probationary year. The review process is conducted at multiple levels within the university, beginning with the department personnel committee and proceeding upward to the chair of the department, the dean, the provost and vice president of academic affairs, and the university president. At each level, the reviewer makes a written recommendation whether to grant tenure and that recommendation is provided to the candidate. A faculty member who is not granted tenure receives a "final termination year" of employment.
The review forms from Park's file consistently include comments from reviewers noting Park's lack of publications and urging him to "concentrate his efforts" in that area. For example, in June 2008, the department chair's recommendation noted that Park had not "published or submitted any manuscript during this review period," and recommended that he "focus on completing his in-preparation manuscripts for publication."
In the grievance report dated September 27, 2013, Dr. LaPolt summarized the hearing regarding Park's grievance, which the report described as "based on the allegation that Dr. Park was not evaluated in a `fair, thorough and consistent' manner, depriving him of tenure in violation of the CBA." The report concluded that Park "has failed to demonstrate" that the university violated the CBA and dismissed Park's grievance.
In support of its motion to strike, CSU also provided a "faculty comparison document" prepared by Dr. LaPolt comparing the relative achievements of Park and other faculty members who were awarded tenure.
Park opposed CSU's motion to strike, arguing both that (1) CSU's decision to deny him tenure was a "governance decision" of a public entity and was therefore not protected by the anti-SLAPP statute, and (2) the "core injury-producing conduct by CSU" was its "failure to provide a fair tenure review procedure and hearing" and was therefore "not the protected speech" of CSU. In support of his opposition, Park filed a declaration in which he largely echoed the allegations made in his complaint. With respect to his achievements in publications (category B1), Park contended he "was only credited with having published two papers," but he "actually published four"—"two peer reviewed journal articles, one newsletter article, and one research report." Park claimed that all four should have been considered publications under CSU's policies. In addition to category B1, Park contended he had demonstrated achievement in categories B2 (college and community-based projects), B4 (presentations), and B5 (other contributions).
The trial court issued its tentative ruling denying CSU's motion to strike on October 8, 2014. After distinguishing CSU's cited cases, the court found that "[t]his action is not expressly based on communicative acts in connection with the RTP and grievance processes." Thus, "the gravamen of the complaint was not defendant's communicative conduct in denying plaintiff tenure or his
"A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so. `"While SLAPP suits masquerade as ordinary lawsuits such as defamation and interference with prospective economic advantage, they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right."' [Citation.]" (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 [109 Cal.Rptr.3d 329, 230 P.3d 1117] (Simpson).)
"In 1992, out of concern over `a disturbing increase' in these types of lawsuits, the Legislature enacted section 425.16, the anti-SLAPP statute. (§ 425.16, subd. (a).) The statute authorized the filing of a special motion to strike to expedite the early dismissal of these unmeritorious claims. (§ 425.16, subds. (b)(1), (f).) To encourage `continued participation in matters of public significance' and to ensure `that this participation should not be chilled through abuse of the judicial process,' the Legislature expressly provided that the anti-SLAPP statute `shall be construed broadly.' (§ 425.16, subd. (a).)" (Simpson, supra, 49 Cal.4th at p. 21.)
Analysis of a motion to strike pursuant to section 425.16 involves a two-step process. (Simpson, supra, 49 Cal.4th at p. 21.) "First, the defendant must make a prima facie showing that the plaintiff's `cause of action . . . aris[es] from' an act by the defendant `in furtherance of the [defendant's] right of petition or free speech . . . in connection with a public issue.' (§ 425.16, subd. (b)(1).) If a defendant meets this threshold showing, the
We review an order denying an anti-SLAPP motion under a de novo standard. (Tuszynska, supra, 199 Cal.App.4th at p. 266.) In other words, we engage in the "same two-step process to determine, as a matter of law, whether the defendant met its initial burden of showing the action is a SLAPP, and if so, whether the plaintiff met its evidentiary burden on the second step." (Id. at pp. 266-267, citation omitted.)
In the first step of a motion to strike under section 425.16, the moving party has the burden of showing that the cause of action arises from an act in furtherance of the right of free speech or petition—i.e., that it arises from a protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965 [12 Cal.Rptr.3d 54, 87 P.3d 802].) Thus, the moving party must establish both (1) that its act constituted protected activity, and (2) the cause of action arose from that protected activity.
The anti-SLAPP statute itself provides the parameters for protected activity. Section 425.16, subdivision (e) defines an "`act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue'" as including "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; . . . or (4) 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."
CSU contends its conduct falls within section 425.16, subdivision (e)(1), (2), and (4). Specifically, with respect to subdivision (e)(2), CSU claims that its RTP proceedings qualify as an "official proceeding authorized by law" and that the reviews and evaluations given to Park during the RTP process are therefore covered as statements or writings "made in connection with an issue
In Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 [46 Cal.Rptr.3d 41, 138 P.3d 193] (Kibler), the Supreme Court held that a hospital's peer review process qualified as an "`official proceeding authorized by law'" for the purposes of the anti-SLAPP statute, because the peer review process is governed by, and required under, the Business and Professions Code and decisions resulting from peer review proceedings are subject to judicial review by administrative mandamus. (Id. at pp. 198-199.) As such, "the Legislature has accorded a hospital's peer review decisions a status comparable to that of quasi-judicial public agencies whose decisions likewise are reviewable by administrative mandate." (Id. at p. 200, citing McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785 [52 Cal.Rptr.2d 466] (McGill).) In McGill, the Court of Appeal held that the state university's determination denying tenure to a faculty member was properly subject to judicial review by writ of ordinary mandate.
Similarly here, the CSU board is a public agency authorized and required by statute to adopt rules for governing university employees, including the RTP process. (See Ed. Code, §§ 66600, 89000, 89500, subd. (a)(1) & (2), 89534, 89542.5.) CSU's adjudicatory decisions regarding tenure are subject to judicial review by petition for writ of mandate. (See McGill, supra, 44 Cal.App.4th at p. 1785; Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1726 [53 Cal.Rptr.2d 662].)
Having established its qualifying communicative conduct, CSU must also show that Park's claims arise out of that protected activity. In considering whether a complaint arises from protected activity, "`we disregard the labeling of the claim [citation] and instead "examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies."'" (Tuszynska, supra, 199 Cal.App.4th at p. 267, italics omitted.) We assess the principal thrust by identifying "[t]he allegedly wrongful and injury-causing conduct . . . that provides the foundation for the claim." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 189 [6 Cal.Rptr.3d 494].) "`If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. [Citation.]' [Citation]." (Tuszynska, supra, 199 Cal.App.4th at p. 267.) "[T]he critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695].)
Park asserts that his causes of action are based on "CSU's conduct in denying Dr. Park's tenure based on national origin" and denies that his claims arise out of any communicative conduct by CSU. We agree that the gravamen of Park's complaint is CSU's decision to deny him tenure. The question then becomes whether that decision rests on protected activity.
We find a series of decisions in the hospital peer review context to be instructive on this issue. In Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, 73-74 [138 Cal.Rptr.3d 446] (Nesson), disapproved on other grounds by Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 686, footnote 18 [168 Cal.Rptr.3d 165, 318 P.3d 833], a radiologist brought claims for breach of contract, discrimination, and retaliation against a hospital after its medical executive committee summarily suspended him and then terminated his contract. The hospital successfully moved to strike the complaint under section 425.16 and the Court of Appeal affirmed. (Nesson, supra, 204 Cal.App.4th at p. 81.) After finding, under
Our sister Courts of Appeal have reached similar conclusions regarding employment decisions outside the peer review context, where the decision was predicated on the protected activity. For example, in Tuszynska, supra, 199 Cal.App.4th at page 261, an attorney who provided legal services to members of a sheriffs' association under a prepaid legal services plan brought an action for discrimination contending that she received fewer case assignments because of her gender. The defendants argued that her claims arose from protected "communications made in determining what attorneys should be selected to represent [association] members, and whether and to what extent" the plan should fund litigation. (Id. at p. 264.) The plaintiff argued, and the trial court agreed, that her claims were based on the "defendants' alleged `conduct' in failing to refer cases to her, rather than `communications' defendants made." (Id. at p. 265.) The Court of Appeal reversed, finding that the anti-SLAPP statute applied because the plaintiff's gender discrimination claims were "based squarely on defendants' attorney selection and litigation funding decisions themselves, and, concomitantly, communications defendants made in connection with making those decisions." (Id. at p. 269; see Vergos, supra, 146 Cal.App.4th at p. 1397 [finding the gravamen of the plaintiff's complaint was the defendant's "communicative conduct in denying plaintiff's grievances. The hearing, processing, and deciding of the grievances (as alleged in the complaint) are meaningless without a communication of the adverse results"].)
Here, the gravamen of Park's complaint—CSU's decision to deny him tenure—is entirely based on the evaluations of his performance and competency during the RTP proceedings. Park has provided no basis for his claims of discrimination outside of the RTP process, which culminated in his termination. (See Nesson, supra, 204 Cal.App.4th at p. 84 ["Nesson fails to cite any evidence of retaliation or discrimination which is not connected with his summary suspension."].) As such, his claims are based squarely on CSU's tenure and termination decisions, "and, concomitantly, communications
Tellingly, Park ignored Nesson and DeCambre in his opposition to CSU's motion to strike and on appeal. Instead, he attempts to circumvent the authority discussed above by arguing that the gravamen of his complaint is not the tenure decision, but rather "CSU's failure to provide a fair tenure review procedure and hearing."
Park also argues that his claims do not trigger the anti-SLAPP statute because CSU's conduct in denying him tenure was discriminatory and therefore could not be protected. But Park confuses conduct with motive. When evaluating whether the defendant has carried its burden under the first prong of the anti-SLAPP statute, "courts must be careful to distinguish allegations of conduct on which liability is to be based from allegations of motives for such conduct. `[C]auses of action do not arise from motives; they arise from acts.' [Citation.]" (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 823 [150 Cal.Rptr.3d 224], citing Tuszynska, supra, 199 Cal.App.4th at p. 269.) The allegation that CSU's conduct was discriminatory is not relevant to our analysis under the first prong of the anti-SLAPP statute. (See Tuszynska, supra, 199 Cal.App.4th at p. 269 [cautioning against conflating "defendants' alleged injury-producing conduct—their failure to assign new cases to plaintiff and their refusal to continue funding cases previously assigned to her—with the unlawful, gender-based discriminatory motive plaintiff was ascribing to defendants' conduct—that plaintiff was not receiving new assignments or continued funding because she was a woman" (original italics)].) "This type of distinction is untenable in the anti-SLAPP context because it is at odds with the language and purpose of the anti-SLAPP statute. The statute applies to claims `based on' or `arising from' statements or writings made in connection with protected speech or petitioning activities, regardless of any motive the defendant may have had in undertaking its activities, or the motive the plaintiff may be ascribing to the defendant's activities." (Id. at pp. 268-269.)
The order denying CSU's motion to strike pursuant to section 425.16 is reversed. The matter is remanded to the trial court with directions to determine whether Park met his burden under the second prong of the anti-SLAPP analysis. The parties are to bear their own costs on appeal.
Manella, J., concurred.
EPSTEIN, P.J., Dissenting.—I respectfully dissent.
My colleagues would construe the anti-SLAPP statute as applying whenever the action of the defendant under attack in a lawsuit is informed by protected free speech activity. It is difficult to conceive of any collective governmental action that is not; certainly the peer review process in tenure decisions involves protected communications by faculty and academic administrators. But "the mere fact an action was filed after protected activity took place does not mean it arose from that activity." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66 [124 Cal.Rptr.2d 507, 52 P.3d 685].) 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. As discussed in Equilon, "`"the act underlying the plaintiff's cause" or "the act which forms the basis for the plaintiff's cause of action" must itself have been an act in furtherance of the right of petition or free speech.'" (Ibid., quoting ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1003 [113 Cal.Rptr.2d 625].)
