Breadcrumbs or apple seeds?

People often leave things behind for a reason.

Sometimes, they leave something behind in order to find their way back home. That was what Hansel and Gretel did when they left a trail of breadcrumbs as they were led into the forest.

Other times, they leave something behind in order to create something new. That was what John Chapman (aka Johnny Appleseed) did when he traveled the Northwest Territory in the early 19th century seeding new apple orchards.

Some (but not all) judges on occasion seem to place language in their opinions that can serve as breadcrumbs (because the language is meant to reinforce existing precedent) or as apple seeds (because the language can be cited in a subsequent case as justification or support for a new rule of law the judge may wish to be adopted in the latter case). Of course, at the time such a jurist drops that language into an opinion, it could be either a breadcrumb or an apple seed. Its effect -- and, indeed, its purpose -- is only visible to others through hindsight.

Consider the California Supreme Court's recent decision in Bonni v. St. Joseph Health System, 11 Cal. 5th 995 (2021).

Bonni deals with California's anti-SLAPP law.

The purpose of the anti-SLAPP law is to discourage lawsuits that "chill" a person's "valid exercise of [their] constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Civ. Proc. Code Section 425.16(a). The anti-SLAPP law accomplishes this purpose by subjecting lawsuits "arising from" a person's exercise of those rights to a special procedure -- early on in the litigation -- that screens them for "minimal merit." Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 884 (2019). This special screening procedure operates like a cross between a demurrer and a summary judgment motion: The person being sued for exercising his or her rights first has to show that the lawsuit "arises from" activity protected by the anti-SLAPP law; if so, the plaintiff then has the burden (1) to show that the complaint is "legally sufficient" and (2) to produce sufficient evidence for the trial court to conclude that, if that evidence is credited, the plaintiff can prevail on the merits. Navellier v. Sletten, 29 Cal. 4th 82, 88-89 (2002); College Hospital Inc. v. Superior Court, 8 Cal. 4th 704, 719 (1994).

What conduct "is protected under the anti-SLAPP [law]" turns "not [on] First Amendment law, but [rather on] the statutory definitions" set forth in the law itself. City of Montebello v. Vasquez, 1 Cal. 5th 409, 422 (2016). As pertinent here, this statutorily defined "protected activity" includes "any written or oral statement or writing made before a ... judicial proceeding" or "in connection with an issue under consideration or review by a ... judicial body, or any other official proceeding authorized by law." Cal. Civ. Proc. Code Section 425.16(e)(1), (e)(2).

In light of the anti-SLAPP law's self-contained mandate to be "construed broadly," the California Supreme Court long ago recognized that the anti-SLAPP law reaches not only statements made during judicial proceedings but also "communications preparatory to or in anticipation of the bringing of a[ judicial] action or other official proceeding." Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1115 (1999).

For many years, the California courts took a proximity-based approach to assessing whether a prelitigation communication was "protected activity" under the anti-SLAPP law. Under this approach, the fact that a communication was made while a dispute existed between two potential parties -- or even that the "spectre of litigation" was "looming" -- is not enough to render a communication "preparatory to or in anticipation of" a lawsuit. Haneline Pacific Properties, LLC v. May, 167 Cal. App. 4th 311, 320 (2008); People ex rel. Fire Ins. Exchange v. Anapol, 211 Cal. App. 4th 809, 826 (2012). Instead, this approach specifies that a communication between two potential parties to a future lawsuit constitutes "protected activity" only when that communication is "relate[d] to litigation that is contemplated in good faith and under serious consideration" at the time the communication is made. This is the test adopted by the Supreme Court itself in Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1251 (2007). This test is proximity-based because it looks to how proximate the communication is to litigation that is genuinely being contemplated.

But not all California courts have hewn to this approach. Instead, they have held that a prelitigation communication is "protected activity" as long as it is "incidental or reasonably related" to any "actual" or "potential litigation" that is "not a sham." Tichinin v. City of Morgan Hill, 177 Cal. App. 4th 1049, 1067-68 (2009); Takhar v. People ex rel. Feather River Air Quality Management Dist., 27 Cal. App. 5th 15, 28-29 (2018). So articulated, this test ostensibly reaches a broader universe of prelitigation communications than the proximity test: Communications between parties who have a potential dispute that might raise the spectre of litigation is not enough to constitute "protected activity" under the proximity test (for the reasons noted above), but such a dispute may still be "reasonably related" to "potential litigation" that is "not a sham," and thus may constitute "protected activity" under this second approach.

Why the different approach? Borrowing from federal cases, the cases taking this second approach have reasoned that the anti-SLAPP law is designed to safeguard the First Amendment rights of speech and petitioning, and must therefore be construed very broadly to give those rights sufficient "breathing space." Tichinin, 177 Cal. App. 4th at 1066-68; Takhar, 27 Cal. App. 5th at 28-29.

Enter Bonni.

Aram Bonni is an OB/GYN surgeon whose staff privileges at the St. Joseph Hospital of Orange were suspended after he performed three surgeries that resulted in complications. Bonni appealed the suspension administratively, arguing that he was being punished for reporting that the "robotic assistant" who helped him with the surgeries provided only two-dimensional (rather than three-dimensional) imaging. After several levels of administrative review, Bonni settled with the hospital and released all his potential claims against the hospital. Bonni then sued the hospital for retaliating against him by using undue influence and fraud to persuade him to settle, and then breaching the settlement agreement by reporting his resignation to the California Medical Board.

When the hospital moved to dismiss Bonni's claims under the anti-SLAPP law, Bonni then presented the question: Were the hospital's communications regarding the settlement "protected activity"?

Bonni held that the "settlement negotiations preceding the filing of [Bonni's] suit" were protected activity. Bonni, 11 Cal. 5th at 1024-25. In reaching this conclusion, the Bonni court cited the general rule -- from Briggs -- that prelitigation communications constitute "protected activity" if they were "preparatory to or in anticipation of the bringing of [a judicial] action or other official proceeding." Id. at 1024. But the Bonni court did not cite Action Apartment's proximity-based test that looks to whether the communication was "relate[d] to litigation that is contemplated in good faith and under serious consideration" at the time the communication is made. Instead, the Bonni court declared that it must give "adequate 'breathing space' to the right of petition,'" and cited cases following the second approach as well as the federal authority upon which that approach relies. Id. at 1024-25.

So what did the Bonni court mean to do when it invoked the "breathing space" rationale but not its rule?

Maybe nothing.

But if there was some purpose for it, was this language in Bonni meant to be a breadcrumb aimed at harmonizing the "proximity" and "not a sham" approaches used to decide whether prelitigation communications are "protected activity"? To be sure, the second approach's concern with whether litigation is a "sham" could be viewed as corresponding with the proximity test's concern that the communication be "relate[d] to litigation that is contemplated in good faith and under serious consideration."

Or was Bonni's language meant to be an apple seed aimed at laying the groundwork for a new approach to defining when prelitigation communications constitute "protected activity" by making a reference to the "breathing space" rationale that justifies the broader, "not a sham" approach rather than the proximity-based approach.

Bonni is less than six months old, so it is too early to tell whether the Supreme Court might have been channeling Hansel and Gretel or instead possibly germinating orchards.

As with all things, time will tell. 