SLAPP Motions and Discrimination Claims: The California Supreme Court Limits Defendants’ Ability To Attack FEHA Cases

California has a powerful statute that is aimed at protecting our right to engage in free speech.  Known as the SLAPP law, Code of Civil Procedure section 425.16 allows people who are sued for engaging in free speech to bring a motion dismiss the lawsuit that has been filed against them.  In order to prevail on such a motion, the defendant in such a lawsuit must show that the claims at issue arise from protected activity.  If the defendant makes that showing, the plaintiff must then prove that the claims have some degree of merit.

In recent years, public entities have begun to rely on the SLAPP law to challenge lawsuits claiming discrimination or retaliation under California’s Fair Employment and Housing Act (FEHA).  For example, in Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, a hospital brought a SLAPP motion in a case in which a doctor claims to have been discriminated and retaliated against.  The Nesson court held that the hospital’s peer review proceedings were official proceedings.  Therefore, decisions that resulted from those proceedings were protected by the SLAPP law.  See also DeCambre v. Rady Children’s Hospital-San Diego (2015) 235 Cal.App.4th 1, 22.

However, on May 4, 2017, the California Supreme Court recently limited employers’ ability to rely upon the SLAPP law in discrimination cases.  In Park v. Board of Trustees of the California State University (2017) S229728 the Court held that a claim for national original discrimination under the FEHA did not arise from protected activity.  Therefore, it was not subject to the SLAPP law.

The plaintiff in Park sued after he was denied tenure at California State University, Los Angeles.  The University then moved to dismiss Park’s claim on the grounds that it arose from the decision to deny tenure and the communications that led up to that decision.  As such, the University claimed that Park’s lawsuit arose from protected activity.

The Court rejected the University’s argument.  The Court reasoned that the basis of Park’s claim was the decision to deny Park tenure.  The decision to deny tenure may have been communicated either verbally or in writing, but that did not convert the lawsuit into one arising from the exercise of free speech.  Similarly, Park might rely upon certain comments that were made about him to show discriminatory animus.  But that did not convert his case into one that arose from protected speech.

The Court also limited the scope of an earlier decision, Kibler v. Northern Inyo County Local Hospital Distr. (2006) 39 Cal.4th 192.  The Court clarified that its holding in Kibler was only that hospital peer review proceedings could be (not that they always were) official proceedings for the purposes of the SLAPP law.

Interestingly, the Court did not address an issue that arose in an earlier case called Hunter v. CBS Broadcasting Inc. (2013)  221 Cal.App.4th 1510.  In Hunter, the court of appeal found that a defendant news media organiation’s refusal to hire a particular person as a weather news anchor was in furtherance of protected speech.  The defendant in Park tried to rely upon a similar argument, however the Court found that it had not developed that argument sufficiently.

If you have been discriminated against or retaliated against at work, feel free to contact the attorneys at Hunter Pyle Law for a free initial intake.  We can be reached at (510) 444-4400 or at