SLAPP News: California Supreme Court reiterates, again, that wrongdoing is not “speech” just because someone talked about it

by Timothy M. Kowal, Esq.

The high court recently published Park v. Trustees of the Cal. State Univ., reversing a split appellate-panel decision. The Court held plaintiff's retaliation claim could go forward and did not implicate protected conduct just because the trustees' decision involved protected communications.

Skimming the decision, I was eager to find a discussion of the Court of Appeal's crazy decision in Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257. Tuszynska held that a victim's allegations of employment discrimination and retaliation "arose from" the employer's protected investigation and termination decision. That Fourth District opinion's rationale, however, was later discredited, rightly in our view, by the Third District in Nam v. Regents of the Univ. of Cal. (2016) 1 Cal.App.5th 1176. Applying precedent in the California Supreme Court opinion of Navellier v. Sletten (2002) 29 Cal.4th 82, Nam underscored that "'Quite to the contrary, the Supreme Court determined that the SLAPPer's, not the defendant's, intent was irrelevant." We thus do not ignore the defendant's alleged motive.'" (Nam, supra, 1 Cal.App.5th at p. 1189.)

In other words, the protected activity is the defense or alternative explanation for the alleged conduct - not what the lawsuit "arises from." Because of course a fraud defendant, for instance, cannot defeat a complaint by asserting he stole money to use it on "protected conduct." And of course that fraud defendant cannot defeat the complaint by asserting the plaintiff is only upset about the "protected conduct" his stolen money was used on. Misappropriation of funds "is not constitutionally protected." (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 869-870.)

My eagerness was repaid as Park decides this split against authority against Tuszynska:

"The Tuszynska court concluded that, for anti-SLAPP purposes, a discrimination suit alleging an attorney was denied case referrals because she was a woman was necessarily based on both the referral decisions -and, concomitantly, communications defendants made in connection with making those decisions. (Tuszynska, at p. 269.) To the extent Tuszynska v. Cunningham, supra, 199 Cal.App.4th 257 presupposes courts deciding anti-SLAPP motions cannot separate an entity's decisions from the communications that give rise to them, or that they give rise to, we disapprove it."