California's Anti-slapp Act Was Not Intended to Thwart Feha Claims

• Publication year: 2017
• Author: By Andrew Friedman

California's Anti-SLAPP Act Was Not Intended to Thwart FEHA Claims

By Andrew Friedman

Andrew H. Friedman is a partner with Helmer Friedman LLP in Beverly Hills. He received his B.A. from Vanderbilt University and his J.D. from Cornell Law School, where he was an Editor of the Cornell Law Review. Mr. Friedman clerked for the Hon. John T. Nixon, of the U.S. District Court for the Middle District of Tennessee. Mr. Friedman represents individuals and groups of individuals in employment law, consumer rights, and personal injury cases. Mr. Friedman is the author of Litigating Employment Discrimination Cases (James Publishing 2005-2016).

The United States of America was founded and the First Amendment ratified against the backdrop not only of a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,"¹ but also the recognition that speech and the right to petition the government for redress of grievances "are integral to the democratic process."² A strategic lawsuit against public participation (SLAPP),³ on the other hand, is the antithesis of that for which America stands; it is a lawsuit filed to deter citizens and groups of citizens from exercising their constitutional rights to speak out on public issues and/or petition the government.⁴ A SLAPP—usually masquerading as an ordinary lawsuit such as defamation or interference with prospective economic advantage⁵—is typically filed by a deep-pocketed corporation against a citizen or a group of citizens in order to silence criticism, punish a whistleblower, or win a commercial dispute.⁶ Indeed, "[t]he quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition. The objective of the litigation is not to prevail but to exact enough financial pain to induce forbearance. As its name suggests, it is a strategic lawsuit designed to stifle dissent or public participation."⁷

At the strong and repeated urging of then California State Senator Bill Lockyer (Chair of the California Senate Judiciary Committee), the California Legislature enacted Civil Procedure Code § 425.16, California's anti-SLAPP statute, "out of concern over 'a disturbing increase' in civil suits 'aimed at preventing citizens from exercising their political rights or punishing those who have done so.'"⁸ Senator Lockyer commented that the anti-SLAPP legislation was needed to protect "ordinary citizens who are sued by well-heeled special interests."⁹ The Legislature was particularly concerned with ensuring "continued participation in matters of public significance and that this participation should not be chilled through abuse of the judicial process."¹⁰

Section 425.16 "requires that a court engage in a two-step process when determining whether a defendant's anti-SLAPP motion should be granted."¹¹

First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity—i.e., the defendant's free speech in connection with a public issue or petitioning of the government.¹² In determining whether the matter concerns an issue of public interest, the courts must keep in mind that "'public interest' does not equate with mere curiosity";¹³ "a matter of public interest should be something of concern to a substantial number of people";¹⁴ "the assertion of a broad and amorphous public interest is not sufficient";¹⁵ and an "issue of public interest must 'go beyond the parochial particulars of the given parties.'"¹⁶ In determining whether the challenged cause of action is one "arising from" protected activity, the courts must keep in mind that the mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.¹⁷ Moreover, that a cause of action arguably may have been "triggered" by protected activity does not prove that it is one arising from such.¹⁸ In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech (made in connection with a public issue) or petitioning activity.¹⁹ Accordingly, "a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted."²⁰

If the court finds that the defendant has satisfied the first prong of the § 425.16 test, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.²¹ Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and shows a probability of success—is a SLAPP, subject to being stricken under the statute.²²

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Unfortunately, but not unexpectedly, deep-pocketed corporations and other economic powerhouses have attempted to corrupt the anti-SLAPP statute and turn what was supposed to be the "cure" into a "disease," to be used by those powerhouses against ordinary citizens (consumers and employees) and citizen groups, in an effort to silence them.²³ Indeed, those powerhouses began to misuse the anti-SLAPP statute in an effort to thwart various civil and consumer rights lawsuits, including employment and housing discrimination claims brought under the Fair Employment and Housing Act (FEHA).

For example, in Tuszynska v. Cunningham,²⁴ Danuta Tuszynska, an attorney, sued the Riverside Sheriffs' Association Legal Defense Trust (RSA-LDT), a prepaid legal services plan that provides legal representation and related services to Riverside Sheriffs' Association members, for violating FEHA and the Unruh Civil Rights Act. Tuszynska alleged that, because she is a woman, RSA-LDT assigned her fewer case referrals after defendant James Cunningham became its administrator, and that cases were, instead, referred to male attorneys with less experience than her. Defendants RSA-LDT and Cunningham filed an anti-SLAPP motion, contending (incredibly) that Tuszynska was somehow chilling their First Amendment rights. The trial court correctly denied the motion on the ground that Tuszynska's allegations of gender discrimination did not arise from protected speech or petitioning activities. In its decision, the court wrote that the "gravamen" of Tuszynska's claims was that "because she is a woman, she is not getting cases," and reasoned that Tuszynska's claims were based on defendants' alleged "conduct" in failing to refer cases to her. On appeal, the Court of Appeal for the Fourth Appellate District erroneously failed to consider that Tuszynska was not an economic powerhouse (but rather, an ordinary citizen who was supposed to be protected by the anti-SLAPP statute) and that she was not bringing the typical claims brought by SLAPPers (defamation or interference with prospective economic advantage). Next, the Court of Appeal erred by incorrectly concluding that RSA-LDT's motive to discriminate against Tuszynska was irrelevant in determining whether RSA-LDT had satisfied its threshold burden to prove that the gravamen of Tuszynska's lawsuit was based on RSA-LDT's protected activity.

Likewise, in DeCambre v. Rady Children's Hosp.-San Diego,²⁵ a physician, Marvalyn DeCambre, sued her employer, the Rady Children's Hospital-San Diego, for retaliation and racial discrimination in violation of FEHA after the hospital made the decision to not renew Dr. DeCambre's employment contract. In response, the hospital filed an anti-SLAPP motion contending that, because the nonrenewal decision occurred as a result of the hospital's peer review process (a process that is privileged for anti-SLAPP purposes), DeCambre's lawsuit was a SLAPP. In opposition to the motion, DeCambre argued that the motive for her termination was unlawful discrimination and, therefore, the termination was not protected by the anti-SLAPP statute. The court of appeal erroneously rejected DeCambre's argument, finding that because the hospital's decision to not renew DeCambre's contract stemmed from protected peer review activity, DeCambre's retaliation and discrimination lawsuit was a SLAPP.

Additionally, in Hunter v. CBS Broadcasting, Inc.,²⁶ an employer being sued for discrimination in violation of FEHA filed an anti-SLAPP motion in an effort to thwart the claims of the plaintiff, Kyle Hunter. Hunter, a meteorologist, sued CBS Broadcasting Inc. for refusing to hire him as a weather news anchor because of his gender and age. In response to CBS's anti-SLAPP motion, Hunter argued that the "conduct" underlying his causes of action was not CBS's selection of its weather anchors, but rather CBS's decision to utilize discriminatory criteria in...