SLAPP: Partial Reversal Of Trial Court’s Denial SLAPPing Defendants’ Motion Means Defendants Will Be Entitled To Mandatory Fees On Remand

Because They Did Not Achieve A Total Win On Their SLAPP Motion, Defendants Will Be Entitled Only To Fees That Relate To The Successful Portions Of Their Motion

        A professor in California State University’s Department of Counselor Education received a report from one of his students that the then-Chair of the Department had sexually and racially harassed her. Professor was aware of such complaints regarding this then-Chair. The Professor assisted the student in bringing a formal complaint against the then-Chair under the University’s policies and procedures, and the investigator ultimately concluded that the then-Chair had sexually harassed the student. The then-Chair was allowed to remain chair of the Department for 4-5 months after conclusion of the investigation, and was later placed on paid leave.

        During the investigation, the student e-mailed the Associate Vice President of Human Resources and other University administrators regarding concern that the “very long and drawn out” investigation “has been going on for almost 8 months,” and that she was experiencing stress and anxiety from continuing to see the then-Chair at the school. The student also noted that the investigation’s report indicated that at least two professors were aware of the then-Chair’s behaviors, and that at least one had expressed these concerns to the University. The University responded by e-mail, in part stating that “it is concerning that other faculty members . . . appear to have received information regarding troubling behavior with other student(s) . . . [and that] they should have notified appropriate administrators, but they did not.”

        During the following couple of months, the University initiated three investigations against Professor, including a complaint from the then-Chair that Professor had harmed him by “inspiring students to come forward to report sexual and racial harassment by [the then-Chair].” The two other investigations involved complaints from two other faculty members that Professor had failed to make breast-feeding accommodations and had made intimidating statements.

        After exhausting administrative remedies, Professor filed this lawsuit – Laker v. Bd. of Trustees of the Cal. State Univ., Case No. H044836 (6^th District, February 28, 2019) (published) – against University and a University official for defamation and retaliation. The defamation claim stemmed from the e-mail claiming that he “knew of sexual harassment and failed to report it,” and that University officials called him a “liar” when he said that other students had complained of sexual harassment by then-Chair. Defendants SLAPPed back, but the trial court denied their motion finding that they had not met their initial burden of showing that the defamation and retaliation causes of action “arise from protected activity.” Defendants appealed.

        In an opinion authored by Justice Danner, the 6^th District affirmed in part, and reversed in part.  Defendants argued that the trial court erred in its conclusion – asserting that Professor’s defamation claim arose from the protected activity of statements made by University official and others during the investigation into then-Chair, and that Professor’s retaliation claim arose from protected activity of the investigation of the three complaints against Professor. Professor countered that the anti-SLAPP statute does not protect these activities because University acted illegally by conducting “sham” investigations, and that University’s pursuit of three investigations against him does not meet the test for claims arising from protected activity.

        With regard to Professor’s defamation cause of action, the 6^th District – under Civil Code section 47(b)(3) – concluded that Defendants met their initial burden of showing the statements/conduct underlying the allegation arose from protected activity because the they were made in “official proceedings,” were absolutely privileged and protected, and were therefore inadmissible. Because the evidence on which Professor relied to support his defamation cause of action were inadmissible, he could not demonstrate a probability of success on the merits of his defamation claim.

        Turning to the retaliation claim, the 6^th District determined the alleged retaliation arose from both protected and unprotected activity. First, it rejected Professor’s argument that the University’s activities were illegal and, therefore, not protected. In doing so, the 6^th District cited Hansen v. California Dept. of Corrections and Rehabilitation (2008) 171 Cal.App.4^th 1537, which observed that, “conduct that would otherwise be protected by the anti-SLAPP statute does not lose its coverage simply because it is alleged to have been unlawful. They then considered whether the actions underlying the retaliation claim – the three investigations – was protected activity. The 6^th District looked to Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5^th 581, which discussed the Supreme Court case of City of Montebello v. Vasquez (2016) 1 Cal.5^th 409, and noted “[t]he Vasquez opinion draws a distinction between, on the one hand, claims seeking to impose liability against a governmental entity, and, on the other, claims seeking to impose liability for the expressive activity of officials through whom a government entity must act.” The resulting conclusion was that while the activity of the 3 investigations against Professor was protected activity as to the University official, it was not as to University.

        Finally, the 6^th District determined that Defendants were entitled to attorney’s fees and costs as prevailing parties on their anti-SLAPP motion under Code Civ. Proc. section 425.16(c)(1) – remanding the issue back to the trial court to determine the amount of attorney’s fees and costs incurred in successfully striking the defamation cause of action, and the retaliation cause of action as to the University official.