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).)
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.
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 decision necessarily rested on communications the University
The Court of Appeal's division is symptomatic of ongoing uncertainty over how to determine when "[a] cause of action against a person aris[es] from" that person's protected activity. (§ 425.16, subd. (b).) We granted review.
Anti-SLAPP motions may only target claims "arising from any act of [the defendant] in furtherance of the [defendant'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).) In turn, the Legislature has defined such protected acts in furtherance of speech and petition rights to include a specified range of statements, writings, and conduct in connection with official proceedings and matters of public interest. (Id., subd. (e).)
Thus, for example, in City of Cotati v. Cashman, supra, 29 Cal.4th 69, the plaintiff city filed a state suit seeking a declaratory judgment that its rent control ordinance was constitutional. The suit followed in time the defendant owners' federal suit seeking declaratory relief invalidating the same ordinance. In the state action, the defendants filed an anti-SLAPP motion alleging the suit arose from their protected activity of filing the federal suit. The motion, we explained, should have been denied because the federal suit formed no part of the basis for the state claim. The city's potential entitlement to a declaratory judgment instead arose from the parties' underlying dispute over whether the ordinance was constitutional, a dispute that existed prior to and independent of any declaratory relief action by the owners. (Id. at p. 80.)
In contrast, in Navellier v. Sletten, supra, 29 Cal.4th 82, another case in which the defendant's protected activity was the prior filing of court claims, the prior claims were an essential part of the activity allegedly giving rise to liability. The Navellier plaintiffs sued for breach of contract and fraud, alleging the defendant had signed a release of claims without any intent to be bound by it and then violated the release by filing counterclaims in a pending action in contravention of the release's terms. Unlike in City of Cotati, the defendant was "being sued because of the affirmative counterclaims he filed in federal court. In fact, but for the federal lawsuit and [the defendant's] alleged actions taken in connection with that litigation, plaintiffs' present claims would have no basis. This action therefore falls squarely within the ambit of the anti-SLAPP statute's `arising from' prong." (Navellier, at p. 90.)
Many Courts of Appeal likewise are attuned to and have taken care to respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim. In San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343 [22 Cal.Rptr.3d 724], a fire protection district sued a county retirement board over the pension contribution levels the board decided to impose. The board filed an anti-SLAPP motion, arguing the suit arose out of the deliberations and vote that produced its decision. The Court of Appeal disagreed. It explained that "`[t]he [anti-SLAPP] statute's definitional focus is ... [whether] the defendant's activity giving rise to his or her asserted liability ... constitutes protected speech or petitioning.'" (Id. at p. 354.) It distinguished between the board's allegedly wrongful act (the contribution level decision) and the preceding deliberations and vote. "[T]he fact that a complaint alleges that a public entity's action was taken as a result of a majority vote of its constituent members does not mean that the litigation challenging that action arose from protected activity, where the measure itself is not an exercise of free speech or petition. Acts of governance mandated by law, without more, are not exercises of free speech or petition." (Ibid.; see City of Montebello v. Vasquez, supra, 1 Cal.5th at pp. 425-426 [discussing with approval San Ramon's distinction, for anti-SLAPP purposes, between government decisions and the deliberations that lead to them].)
In Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624 [7 Cal.Rptr.3d 715], the plaintiffs sued for malpractice after the defendants' representation of them in a prior lawsuit led to their answer and cross-complaint being struck as a terminating sanction for discovery violations. The attorney defendants filed an anti-SLAPP motion, arguing the malpractice suit arose out of a declaration they had submitted in the earlier suit admitting misconduct and seeking to set aside the terminating sanction under section 473. While the declaration supplying "evidence of [the attorneys'] conduct" (Jespersen, at p. 631) might be protected, this was insufficient to carry the attorney defendants' first-step burden: they were being sued not for filing the declaration, but for the underlying misconduct (id. at p. 632; see Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399 [126 Cal.Rptr.2d 560] [emphasizing that courts should not confuse a party's "allegedly wrongful acts with the evidence that plaintiff will need to prove such misconduct" and denying an anti-SLAPP motion where the plaintiff sought no relief for the defendant's communicative acts]).
Courts presented with suits alleging discriminatory actions have taken similar care not to treat such claims as arising from protected activity simply because the discriminatory animus might have been evidenced by one or more communications by a defendant. In Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 [65 Cal.Rptr.3d 469], the Department of Fair Employment and Housing (DFEH) sued a landlord for failing to provide accommodations to a disabled tenant. The landlord had advised the rent control board it was removing units from the housing market, disputed the tenant's assertion of a disability that would have entitled her to one year to find alternate housing, and ultimately
In Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 [130 Cal.Rptr.3d 410], the plaintiff sued his public agency employer for racial and age discrimination and retaliation, resulting in his constructive discharge, as well as defamation. The agency argued in an anti-SLAPP motion that the suit arose from negative evaluations of the plaintiff made by agency officers and board members. Addressing the nondefamation claims, the Court of Appeal rejected this argument; "the pleadings establish[ed] that the gravamen of plaintiff's action against defendants was one of racial and retaliatory discrimination, not an attack on [the defendants] for their evaluations of plaintiff's performance as an employee." (Id. at p. 625.) Liability, if any, would arise from the constructive discharge of the plaintiff for illegal reasons, not the defendants' evaluations of the plaintiff at the agency's board meeting. (Id. at pp. 624-625.)
We review de novo the grant or denial of an anti-SLAPP motion. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 [46 Cal.Rptr.3d 638, 139 P.3d 30].) We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. (Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal.App.4th 1345, 1350 [170 Cal.Rptr.3d 899]; Martin v. Inland Empire Utilities Agency, supra, 198 Cal.App.4th at p. 624.) In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. (§ 425.16, subd. (b)(2); Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) We do not, however, weigh the evidence, but accept the plaintiff's submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law. (Soukup, at p. 269, fn. 3.)
The University offers a threefold response. First, it asserts that anti-SLAPP motions are decided on the pleadings and any evidence the parties submit, and so Park could not hide the existence of University communications by omitting them from his complaint. This misses the point of the trial court's observation, which is that the elements of Park's claims do not depend on proof of any University communications. No one disputes the University can submit evidence of communications leading to the decision to deny tenure, but doing so does not establish those communications, rather than the tenure denial decision itself, as the "facts upon which the liability ... is based." (§ 425.16, subd. (b)(2).) Communications disparaging Park, without any adverse employment action, would not support a claim for employment discrimination, but an adverse employment action, even without the prior communications, surely could.
Kibler lends no support. There, the plaintiff doctor sued a hospital and various individual defendants for defamation and related torts. The trial court in Kibler found, and we accepted for purposes of review, that these tort claims arose from statements made in connection with a hospital peer review proceeding. The only issue before us was whether, assuming this to be so, the peer review proceeding was an "`official proceeding'" within the meaning of the anti-SLAPP statute. (Kibler v. Northern Inyo County Local Hospital Dist., supra, 39 Cal.4th at p. 198; see § 425.16, subd. (e)(2) [defining protected activity to include "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" (italics added)].) That is, we took for granted lower court findings as to what activity the tort claims arose from under section 425.16, subdivision (b)(1), and then considered whether that activity constituted protected activity under a particular portion of subdivision (e)'s statutory definition. We did not consider whether the hospital's peer review decision and statements leading up to that decision were inseparable for purposes of the arising from aspect of an anti-SLAPP motion, because we did not address the arising from issue. (See Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 58 [148 Cal.Rptr.3d 119] [correctly recognizing Kibler addressed only whether hospital peer review proceedings can be "`official proceedings,'" and courts resolving anti-SLAPP motions must still separately determine whether a given claim arises from any protected activity].)
Applying our decision in Kibler, the Court of Appeal in Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65 [138 Cal.Rptr.3d 446] concluded an anti-SLAPP motion against the claims of a doctor who alleged discriminatory and retaliatory termination of privileges was properly granted. The Nesson court reasoned that under Kibler, a hospital's peer review proceedings are official proceedings, and thus every aspect of those proceedings, including the decision to impose discipline, is protected activity for anti-SLAPP purposes. (Nesson, at pp. 78-79, 82-84.) Similarly, in DeCambre v. Rady Children's Hospital-San Diego (2015) 235 Cal.App.4th 1 [184 Cal.Rptr.3d 888], the Court of Appeal concluded Kibler dictated finding the allegedly discriminatory decision not to renew a doctor's contract to be protected activity. The court correctly considered the elements of the plaintiff's claims in order to identify what conduct underlay each cause of action. (E.g., DeCambre, at p. 22.) However, it also concluded, in reliance on Kibler,
The University argues by analogy that all aspects of its tenure process, including its ultimate decision, are inextricably intertwined protected activity, and the Court of Appeal here agreed. But both Nesson and DeCambre overread Kibler, which did not address whether every aspect of a hospital peer review proceeding involves protected activity, but only whether statements in connection with but outside the course of such a proceeding can qualify as "statement[s] ... in connection with an issue under consideration" in an "official proceeding." (§ 425.16, subd. (e)(2).) Kibler does not stand for the proposition that disciplinary decisions reached in a peer review process, as opposed to statements in connection with that process, are protected. We disapprove Nesson v. Northern Inyo County Local Hospital Dist., supra, 204 Cal.App.4th 65, and DeCambre v. Rady Children's Hospital-San Diego, supra, 235 Cal.App.4th 1, to the extent they indicate otherwise.
In support of the argument for inseparability, the University also cites Vergos v. McNeal (2007) 146 Cal.App.4th 1387 [53 Cal.Rptr.3d 647]. In Vergos, the plaintiff complained of sexual harassment and filed an internal grievance, which was denied. The plaintiff then sued both his public university employer and the individual employee who had served as a hearing officer and denied his grievance. The civil rights claim against the individual hearing officer expressly rested on her "`hearing, processing, and deciding the grievances'" (id. at p. 1391) as well as the allegation the employer and officer had deprived him of a hearing before a "`fair and impartial hearing officer'" (id. at p. 1392). The Court of Appeal concluded this claim arose from the officer's "statements and communicative conduct in handling plaintiff's grievances." (Id. at p. 1394.) In turn, the hearing officer's conduct of an internal grievance proceeding was protected activity because it furthered employees' rights to petition for redress of harassment, discrimination, and similar complaints. (Id. at pp. 1398-1399.)
Vergos does not assist the University. In Vergos, only the individual officer filed an anti-SLAPP motion, and the court was not called on to decide whether any of the claims against the employer defendant arose from protected activity. Vergos does not stand for the proposition that a suit alleging an entity has made a discriminatory decision necessarily also arises from any statements by individuals that may precede that decision, or from the subsequent communication of the decision that may follow. As the Vergos court observed, denying protection to the hearing officer's participation in the process might chill employees' willingness to serve and hamper the ability to
The Court of Appeal found support from one other case, Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257 [131 Cal.Rptr.3d 63], for the conclusion that a claim arising from a decision inevitably arises from the communications leading to that decision. The Tuszynska court concluded that, for anti-SLAPP purposes, a discrimination suit alleging an attorney was denied case referrals because she was a woman was necessarily based on both the referral decisions "and, concomitantly, communications defendants made in connection with making those decisions." (Tuszynska, at p. 269.) To the extent Tuszynska v. Cunningham, supra, 199 Cal.App.4th 257 presupposes courts deciding anti-SLAPP motions cannot separate an entity's decisions from the communications that give rise to them, or that they give rise to, we disapprove it.
Third, the University contends that even if the tenure decision alone is treated as the basis for this case, that decision is protected activity. The University places principal reliance on Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510 [165 Cal.Rptr.3d 123]. There, the plaintiff sued over the defendant's allegedly discriminatory refusal to hire him as a weather news anchor. The reporting of news, whether in print or on air, is constitutionally protected free speech (Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 534-536 [93 Cal.Rptr. 866, 483 P.2d 34]), and Hunter treats a news media organization's decision as to who shall report the news as an act in furtherance of that protected speech (Hunter, at p. 1521).
The University argues that tenure decisions implicate the public interest as much as decisions concerning who should appear in a news broadcast and thus are equally entitled to protection. But this argument fails to appreciate
To make a similar argument, the University would have had to explain how the choice of faculty involved conduct in furtherance of University speech on an identifiable matter of public interest. But the University has not developed or preserved any such argument before us. It has not explained what University expression on matters of public interest the retention or nonretention of this faculty member might further, nor has it discussed the circumstances in which a court ought to attribute the speech of an individual faculty member to the institution with which he or she is affiliated. Whether the grant or denial of tenure to this faculty member is, or is not, itself a matter of public interest has no bearing on the relevant questions — whether the tenure decision furthers particular University speech, and whether that speech is on a matter of public interest — and cannot alone establish the tenure decision is protected activity under section 425.16, subdivision (e)(4).
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 (cf. University of Pennsylvania v. E.E.O.C. (1990) 493 U.S. 182, 195-198 & fn. 6 [107 L.Ed.2d 571, 110 S.Ct. 577]; Sweezy v. New Hampshire (1957) 354 U.S. 234, 262-263 [1 L.Ed.2d 1311, 77 S.Ct. 1203] (conc. opn. of Frankfurter, J.)), or under what circumstances the protected speech of an individual professor might be attributable to a private or public university for either free speech or anti-SLAPP purposes. Nor do we express any opinion concerning whether Hunter v. CBS Broadcasting Inc., supra, 221 Cal.App.4th 1510, itself was correctly decided. We 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 section 425.16, subdivision (e)(4).
We reverse the judgment of the Court of Appeal and remand for further proceedings not inconsistent with this opinion.
Cantil-Sakauye, C. J., Chin, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.