Parsing protected activity

APPELLATE ZEALOTS

Decided only weeks ago by the California Supreme Court, Park v. Board of Trustees of California State Univ., 2017 DJDAR 4232 (May 4, 2017), may be the most important case to define the way California's anti-SLAPP statute applies to government entities since its enactment in 1992. In Park, the court unanimously, definitively and elegantly answered a complex question that reaches the core of the anti-SLAPP statute's purpose. That question: When a plaintiff challenges a decision that partly resulted from some protected speech or petitioning activity, does the plaintiff's claim "arise from" that activity, rendering it vulnerable to dismissal under the anti-SLAPP law? Much to the relief of many, particularly litigants who challenge governmental actions and their attorneys, the answer was a resounding no.

The plaintiff in Park was a professor who was denied tenure at UCLA. He sued the university for employment discrimination, contending he was denied tenure because he is of Korean national origin. The university responded with an anti-SLAPP motion, which asserted that it arrived at its decision to deny Park tenure through protected speech activity and, therefore, that decision could not form the basis for his discrimination suit. The trial court denied the university's motion, but the court of appeal reversed over a dissent. The Supreme Court granted review to resolve the question of whether the anti-SLAPP law applies when a plaintiff brings a claim that does not directly challenge speech or petitioning activity, but rather challenges an alleged act that in some way relied on speech or petitioning activity.

This has proven to be a difficult distinction for the lower courts to draw. Fifteen years ago, the Supreme Court tried to make it clear by explaining that just because a plaintiff's lawsuit was filed after the defendant engaged in protected speech or petitioning activity, that does not mean the plaintiff's case is subject to the anti-SLAPP law, which applies only to claims arising from protected activity. City of Cotati v. Cashman, 29 Cal. 4th 69 (2002). Nonetheless, over the years, defendants - especially government entities - continued to argue that suits "arose from protected activity" where the actions challenged were the end result of any kind of speech or petitioning activity at any point in the decision-making process. As long as the government action involved discussions at public meetings, communications among government officials and the public, or votes by members of a legislative or adjudicative body, these defendants argued the suit was subject to the anti-SLAPP law.

In one case, for example, a county retirement board contended that a fire district's challenge to its decision setting pension contribution levels was a SLAPP suit because the decision was arrived at in part through deliberations and voting, which the board contended was protected activity. San Ramon Valley Fire Protection Dist. v. Contra Costa Cnty. Emps' Retirement Ass'n, 125 Cal. App. 4th 343 (2004). In another case, a company's maintenance contract with a city was terminated, and the work was awarded to another contractor without competitive bidding. When the first company sued, the city moved to dismiss the case as a SLAPP suit, arguing that its deliberations regarding the award of the new contract constituted protected speech. Graffiti Protective Coatings, Inc. v. City of Pico Rivera, 181 Cal. App. 4th 1207 (2010). In both these cases, the Court of Appeal held the government conduct did not "arise from" speech or petitioning activity within the meaning of the anti-SLAPP law.

The water appears to have become muddied when the Supreme Court decided that a hospital district could file an anti-SLAPP motion seeking dismissal of a doctor's tort action against it. Kibler v. Northern Inyo Cnty. Local Hosp. Dist., 39 Cal. 4th 192 (2006). The only question addressed by the Supreme Court in Kibler was whether a hospital peer review proceeding is an "official proceeding" within the meaning of the anti-SLAPP law. Nonetheless, several courts of appeal read the case as holding that any legal challenge to a government entity's action can be characterized as a SLAPP suit if the action resulted from protected activity.

That set the ball rolling in the wrong direction. For example, at least two divisions of the Court of Appeal later relied on Kibler to hold that every aspect of a hospital peer review process is protected activity, and thus a doctor's challenge to an allegedly discriminatory or retaliatory action by a hospital is always susceptible to an anti-SLAPP motion. Nesson v. Northern Inyo Cnty. Local Hosp. Dist., 204 Cal. App. 4th 65 (2012); DeCambre v. Rady Children's Hosp.-San Diego, 235 Cal. App. 4th 1 (2015).

In Park, the Supreme Court expressly disapproved both these cases. It explained that Kibler was concerned only with the question whether hospital peer review proceedings are official proceedings, and simply "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."

As the Park opinion ultimately recognizes, reading the "arising from" requirement in the anti-SLAPP statute to apply to all government actions resulting from protected communications would lead to absurd results not intended by the Legislature. After all, government decisions are frequently arrived at after discussion and a vote at a public meeting, and thus involve protected activity. If that were sufficient to bring the resulting decision within the protection of the anti-SLAPP law, few government actions would ever be subject to full judicial review on the merits. With Park on the books, however, lawyers who represent people adversely affected by a government action need no longer fear being hit by an anti-SLAPP motion merely because the government's decision was arrived at through a deliberative process involving protected speech or petitioning activity. Professor Park will get his day in court.

It is worth noting, in conclusion, that Park and City of Cotati were both authored by Justice Kathryn Werdegar, who announced in March that she will be retiring from the Supreme Court at the end of August. Both opinions reflect the precision of analysis and clarity of expression Werdegar has honed during her decades of service to California's judicial system, first as a judicial research attorney, then as a justice of the Court of Appeal, and finally as a Supreme Court justice. The anti-SLAPP statute had been in effect for only two years when Justice Kathryn Werdegar joined the Supreme Court in 1994, and she has authored many of the court's key opinions interpreting the statute, including Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106 (1999) (one of the earliest Supreme Court cases to address the subject), Equilon Enter. v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002) and Navellier v. Sletten, 29 Cal. 4th 82 (2002) (the two companion cases to City of Cotati), and Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728 (2003), which held the anti-SLAPP law applicable to malicious prosecution actions. California - and those who believe principles of free speech and government petitioning are furthered by the state's broad anti-SLAPP law - are fortunate to have enjoyed for so long the benefit of her skill and expertise.