Anti-SLAPP statute turns 25 with a bang

2017 IN REVIEW

This year marked the 25th anniversary of the enactment of Code of Civil Procedure Section 425.16 -- the anti-SLAPP statute -- which the Legislature created a means of quickly disposing of meritless litigation brought to chill the rights to speech and petitioning. This year saw three anti-SLAPP decisions by the California Supreme Court: Barry v. State Bar of California, 2 Cal. 5th 318 (2017); Parrish v. Latham & Watkins, 3 Cal. 5th 767 (2017); and Park v. Board of Trustees of California State University, 2 Cal. 5th 1057 (2017).

Two -- Barry and Parrish -- are interesting but not monumental.

In Barry, a lawyer disciplined by the California State Bar sued the bar in Los Angeles County Superior Court, alleging discrimination and retaliation in connection with her discipline. The trial court ruled that Ms. Barry could not meet Section 425.16(b)(1)'s requirement to show a probability of prevailing on her claim because the superior courts have no subject matter jurisdiction over State Bar disciplinary proceedings. It granted the bar's anti-SLAPP motion and awarded it attorney fees under Section 425.16(c). On appeal, the case presented the issue of whether the superior court had jurisdiction to reach the anti-SLAPP motion and award fees, when it could have granted a special demurrer and just dismissed for want of jurisdiction under Code of Civil Procedure Section 430.10(a). Ultimately, the Supreme Court held that, notwithstanding the superior court's lack of subject matter jurisdiction over the case as a whole, it maintained sufficient ancillary jurisdiction over the parties to grant the anti-SLAPP motion and award fees.

In Parrish a defendant in a trade secrets case sued Latham & Watkins for malicious prosecution, claiming that Latham brought the earlier action on behalf of its client without probable cause. Like Barry, Parrish focused on the second element of the anti-SLAPP analysis -- whether plaintiff showed a probability of prevailing. Although Latham's client ultimately lost at trial in the trade secrets case, it had defeated a summary judgment motion. The Supreme Court held that under the so-called interim adverse judgment rule, a favorable summary judgment ruling establishes that there was enough merit to the underlying cause of action to constitute probable cause, even if that party ultimately lost at trial. So the plaintiff had no likelihood of prevailing on its malicious prosecution claim and the motion was properly granted.

But the main anti-SLAPP event before the Supreme Court this year was Park. Park is an incredibly significant decision that disapproves a line of Court of Appeal cases that had expanded the anti-SLAPP remedy beyond its original moorings. Park, alongside a series of cases expected for decision in 2018, could set the high-water mark for an expansionist period in interpreting the anti-SLAPP statute set off by the court's 2002 trilogy of Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002); Navellier v. Sletten, 29 Cal. 4th 82 (2002); and City of Cotati v. Cashman, 29 Cal. 4th 69 (2002).

Sungho Park was an assistant professor who sought, but was denied, tenure at CSU Los Angeles. A Korean national, Park sued the school for discrimination under the Fair Employment and Housing Act. Like most universities, CSU makes tenure decisions through a formalized tenure review process. Back in 2006, the Supreme Court held that analogous peer review processes for admission privileges at public hospitals were "official proceedings authorized by law," under Section 425.16(e)(2) and (2), and thus that claims arising from them fall within the ambit of the anti-SLAPP statute. See Kibler v. Northern Inyo County Local Hospital Dist., 39 Cal. 4th 192 (2006).

So CSU brought an anti-SLAPP motion, asserting that Park's claim arose from the tenure review process and thus was subject to dismissal as a SLAPP. The trial court denied the motion, but the Court of Appeal reversed, in a split decision. The high court granted review on whether Park's discrimination claim "arose from" the official tenure process. In a unanimous opinion by Justice Kathryn Werdegar, the court held that it did not.

The court identified the crux of the issue as "the relationship a defendant must show between a plaintiff's claim and the sorts of speech on public matters the Legislature intended to protect." A defendant meets that burden only when the act that "constitutes the cause of action" is "itself" activity protected under Section 425.16(e)(1)-(4). The court drew a vital "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." Thus, in applying the "arising from" inquiry, courts "should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability."

As the Supreme Court explained -- quoting from Court of Appeal cases it approved of -- although "government decisions are frequently arrived at after discussion and a vote at a public meeting," "acts of governance mandated by law, without more, are not exercises of free speech or petition." Thus, even if the tenure review process is an "official proceeding" and any statements made to or in it are protected activity, the school's ultimate tenure decision is not itself protected activity. And since the central element of Park's case was that the school denied him tenure because he was Korean -- not as the result of a legitimate tenure review -- Park's claim did not arise from protected activity.

The Supreme Court did not, however, reach one key issue, as it wasn't presented: What happens when the defendant claims that the very employment decision itself is "expressive," and thus protected activity. The court distinguished the facts of Park's case from Hunter v. CBS Broadcasting Inc., 221 Cal. App. 4th 1510 (2013), which held that the employment decisions of certain First Amendment-implicating industries like media can be "other conduct in furtherance" of speech or petitioning and thus protected activity under Section 425.16(e)(4). But the court also declined to "express any opinion concerning whether Hunter ... was correctly decided."

Which sets up the anti-SLAPP docket for 2018. While the Park decision was pending, the high court granted review in a case that presented just the same issue as Hunter, but reached the opposite result. See Wilson v. Cable News Network, Inc., 6 Cal. App. 5th 822, 827 (2016), rev granted 214 Cal. Rptr. 3d 290 (2017). Also on the court's current anti-SLAPP docket are a pair of cases that ask what it means to be a "public issue or an issue of public interest" under Section 425.16(e)(4). See FilmOn.com v. Doubleverify, Inc., 13 Cal. App. 5th 707 (2016), rev granted 2017 DJDAR 10954 (Nov. 15, 2017); Rand Resources, LLC v. City of Carson, 247 Cal. App. 4th 1080 (2016), rev granted 208 Cal. Rptr. 3d 282 (2016). And early in 2017, the court also granted review in a case addressed to the procedural question of whether Section 425.16(f)'s 60-day time limit from service of a complaint to bring an anti-SLAPP motion applies to claims that are re-alleged in an amended complaint. See Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 6 Cal. App. 5th 1207 (2016), rev granted 215 Cal. Rptr. 3d 2 (2017).

So 2018 is looking to be a busy year.