A discrimination suit challenging a tenure decision is not subject to an Anti-SLAPP motion to strike even if the decision followed a public hearing and statements made at the hearing are used as evidence of bias. A suit is not subject to an Anti-SLAPP motion to strike simply because it attacks a decision reached or action taken after protected speech or petitioning activity, or was communicated thereafter by means of protected speech or writing. Instead, the Anti-SLAPP statute applies only when the speech or petitioning activity itself is the wrong complained of and not just evidence of liability or a step leading to another act for which liability is asserted. Thus, this professor’s suit claiming he was denied tenure due to discrimination and retaliation was not subject to being stricken under the Anti-SLAPP statute. The action challenged by the suit was the denial of tenure, which is not a protected activity. That the decision to deny tenure followed public hearings at which protected speech occurred was not enough to make the Anti-SLAPP statute applicable, nor was it sufficient that statements made at those hearings might be used as evidence of a discriminatory motive for denial of tenure. Instead, in ruling on an Anti-SLAPP motion, the trial court should examine the elements of the plaintiff’s claim and determine whether protected speech or petitioning activity supplies any of those elements and consequently forms the basis for liability. Here, none of the elements of an employment discrimination suit turned on protected speech or petitioning activity, so the Anti-SLAPP motion should have been denied.
California Supreme Court (Werdegar, J.); May 4, 2017; 2107 WL 1737669