Park v. Board of Trustees: On Anti-SLAPP Motion in Discrimination Action, University's Decision to Deny Tenure Arose from Protected Communicative Activity; Court Remands for Determination of Plaintiff's Probability of Success on the Merits

Park v. Board of Trustees of the California State University (8/27/15) --- Cal.App.4th ---, is one of those all-too-rare examples of a clearly written appellate opinion. It begins: 

Plaintiff Sungho Park sued his former employer, defendant Board of Trustees of the California State University (CSU), alleging that CSU discriminated against him based on his national origin when it denied his application for a tenured faculty position and consequently terminated him. Park’s complaint sought damages and an injunction awarding him a tenured position. CSU moved to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court denied the motion, concluding that Park’s claims did not arise from CSU’s communicative conduct related to the tenure review process, but rather from its allegedly discriminatory denial of tenure. Under the circumstances presented here, we conclude the gravamen of the complaint arises from protected activity and therefore reverse and remand with directions to the trial court to determine whether Park demonstrated a reasonable probability of prevailing on the merits of his claims.

The Court explained:

To prevail on an anti-SLAPP motion, the moving party first must show that the cause of action arises from protected activity, i.e., "an act in furtherance of the right of free speech or petition." If the moving party makes this prima facie showing, the opposing party must show that it has a reasonable probability of success on the merits.

CSU made a prima facie showing that its retention, tenure or promotion (RTP) policies qualified as protected activity in that they were "official proceeding authorized by law," and "the reviews and evaluations given to Park during the RTP process are therefore covered as statements or writings 'made in connection with an issue under consideration or review' in the RTP proceedings."

CSU also showed that Park's complaint arose from CSU's protected activity. The Court rejected Park's contention that his causes of action were based on “CSU’s conduct in denying Dr. Park’s tenure based on national origin,” rather then any communicative conduct by CSU. The gravamen of Park's complaint was CSU's refusal to grant him tenure, and was "entirely based on the evaluations of his performance and competency during the RTP proceedings."

Because the trial court found that CSU did not make the required prima facie showing, it did not determine whether Park had shown a reasonable probability of success on the merits. The Court remanded the case to the trial court to determine this issue.

The opinion is available here.