This post is part of a series on California’s anti-SLAPP law from the perspective of Los Angeles appellate and trial attorney, Jeffrey Lewis. The First Amendment and California’s anti-SLAPP law have long been held to protect litigation related activities. Filing a lawsuit, for example, is protected by the First Amendment. Statements made in court proceedings are likewise protected. If a defendant is sued for such litigation activities, the defendant can usually quickly obtain a dismissal by filing an anti-SLAPP motion.
This month the California Supreme Court issued an opinion that narrows the application of California’s anti-SLAPP law. In Park v. Board of Trustees of the California State University (May 4, 2017 No. S229728), the Supreme Court considered the following question: What nexus must a defendant show between a challenged claim and the defendant‘s protected activity for the claim to be struck?
In Park, a professor applied to a university for tenure. The application was denied. He sued the university alleging discrimination. The university responded with an anti-SLAPP motion. The university argued that the communications leading up to the decision to deny his application were protected by the First Amendment and subject to the anti-SLAPP law. The trial court denied the motion and found that the decision to deny tenur
The trial court denied the motion. It agreed with Park that the complaint was based on the University‘s decision to deny tenure, rather than any communicative conduct in connection with that decision, and that the denial of tenure based on national origin was not protected activity, so the University had not carried its burden of showing Park‘s suit arose from protected activity within the meaning of section 425.16, subdivision (e). Accordingly, the trial court did not reach the second step of the anti-SLAPP inquiry. The Court of Appeal reversed and the California Supreme Court restored the trial court ruling finding that the anti-SLAPP motion should not have been granted. The Supreme Court reviewed a number of appellate court decisions that have properly respected the difference 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.” The Park decision represents an important limitation on the scope of anti-SLAPP motions that might otherwise insulate abusive judicial and legislative activities from judicial review.
Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.