Laker v. Board of Trustees of California State University
A FEHA retaliation claim does not “arise from” protected speech merely because the employer’s investigations and statements lurk in the background — and after Baral, courts must parse a single cause of action into its component claims, striking only the allegations that themselves rest on protected activity.
Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745
Retaliation
Anti-SLAPP (Code Civ. Proc. § 425.16) & mixed causes of action
FEHA (Gov. Code § 12940)
In brief. When a public employer is sued for FEHA retaliation, can it use the anti-SLAPP statute to strike the claim by pointing to the protected investigations and statements that surround the dispute? In Laker, the Sixth District drew a careful line: a retaliation claim built on the employer’s decision to investigate an employee does not “arise from” protected activity, because “[w]hat gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.” (Laker, supra, 32 Cal.App.5th at p. 772.) But because the same retaliation cause of action also rested on allegedly defamatory statements — speech that was the wrong — the court applied Baral to parse the claim and strike only that protected sliver. (Id. at pp. 777–778.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The statutory framework. Two statutes frame the case. The anti-SLAPP statute provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Laker, supra, 32 Cal.App.5th at p. 759, quoting Code Civ. Proc., § 425.16, subd. (b)(1).) On the merits side, the retaliation claim arose under the Fair Employment and Housing Act: a FEHA retaliation plaintiff “must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Id. at p. 771, quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
The Aptekar investigation. Dr. Jason Laker is a professor in the counselor-education department at San José State University. (Laker, supra, 32 Cal.App.5th at p. 754.) In the summer of 2015, a student told Laker that the department chair, Dr. Lewis Aptekar, had sexually and racially harassed her, and she filed a formal Title IX complaint; the investigator ultimately concluded that Aptekar had sexually harassed her. (Ibid.) In a memorandum dated December 21, 2015, the investigator said she had “completed the formal investigation of the complaint,” and Aptekar — though disciplined — remained chair until May 2016, after which he was placed on paid leave; in September 2016 the University president stated the University “was looking into how the Aptekar matter was handled.” (Id. at pp. 754–755.)
The statements Laker called defamatory. Laker claimed the University and certain administrators, including associate dean Mary McVey, had covered up prior complaints about Aptekar and then scapegoated him. He alleged that during the Aptekar investigation McVey falsely told the investigator that Laker “was aware of, but failed to report, prior sexual harassment by Aptekar,” and that McVey and others called him a “liar.” (Laker, supra, 32 Cal.App.5th at pp. 763, 755.) He also pointed to a February 2016 e-mail from associate vice president Beth Pugliese — responding to the original student complainant — stating that “it is concerning that other faculty members, including a previous chair of the department, appear to have received information regarding troubling behavior with other student(s) as early as 2013,” and that “[t]hose individuals should have notified appropriate administrators, but they did not.” (Id. at p. 755.)
The investigations into Laker. In March and April of 2016, the University investigated Laker in response to three separate complaints filed by University employees, including Aptekar, who claimed Laker harmed him by “inspiring students to come forward to report sexual and racial harassment.” (Laker, supra, 32 Cal.App.5th at pp. 755–756.) The two other complaints concerned alleged failures to make breastfeeding accommodations and allegedly intimidating statements. (Id. at p. 756.) Laker was never disciplined and remained employed; he contended the three complaints were “highly unusual” and did not meet the threshold for investigation under the University’s executive orders. (Id. at pp. 756, 757.)
Procedural history
After exhausting administrative remedies and receiving a right-to-sue notice, Laker sued the Board of Trustees and McVey (and originally other administrators, later dismissed) for defamation and FEHA retaliation. (Laker, supra, 32 Cal.App.5th at pp. 754, 756.) Defendants responded with an anti-SLAPP motion to strike the complaint in its entirety, arguing both causes of action arose from protected activity — the statements made during the Aptekar investigation (defamation) and the University’s investigation of the three complaints (retaliation) — and that Laker had no probability of prevailing. (Id. at pp. 756–757.) The motion was supported by declarations from McVey, Pugliese, and the office’s investigators, with McVey acknowledging she “did respond to investigators’ questions about Dr. Laker within the context of the Dr. Aptekar matter” but denying any public negative statements. (Id. at p. 757.)
The trial court (Judge Theodore C. Zayner) denied the motion, finding that the University and McVey had not met their initial burden of showing that the defamation and retaliation causes of action “arise from protected activity.” (Laker, supra, 32 Cal.App.5th at pp. 757–758.) The University and McVey appealed. The Court of Appeal, in a unanimous opinion by Justice Danner, reversed and remanded with directions — granting the motion as to defamation, striking the defamation allegation embedded in the retaliation claim, and otherwise affirming the denial of the motion to strike the retaliation claim. (Id. at pp. 779–780.) There was no concurrence or dissent.
Issue
The appeal posed two distinct anti-SLAPP questions. First, did Laker’s defamation claim “arise from” protected activity, given that it rested on statements made during and in connection with the Aptekar investigation — and if so, could the litigation privilege defeat any probability of prevailing? Second, and more consequentially for employment practitioners, did Laker’s FEHA retaliation claim “arise from” protected activity when it was built principally on the University’s decision to pursue three investigations into Laker, but also incorporated allegedly defamatory statements? Embedded in the second question was the post-Baral problem of the mixed cause of action: whether a court must parse a single retaliation count into protected and unprotected components rather than treat it as an indivisible whole. (Laker, supra, 32 Cal.App.5th at pp. 758–759, 772.)
Holding
The defamation claim arose from protected activity because it was based on statements made in connection with an internal investigation — an “official proceeding authorized by law” — but it had to be stricken because those statements were absolutely privileged under Civil Code section 47, subdivision (b), leaving no probability of prevailing. (Laker, supra, 32 Cal.App.5th at pp. 768, 770.) The retaliation claim was a mixed cause of action requiring Baral parsing. Insofar as it was based on the University’s decision to pursue three “meritless” investigations and to “red flag” Laker, it did not arise from protected activity: “[w]hat gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a … retaliatory consideration.” (Id. at p. 772.) But the one allegation that the University retaliated by “publishing false and defamatory statements” did arise from protected speech — “protected speech forms the basis of the defamation allegation” — and, being privileged, was stricken. (Id. at pp. 777–778.) The court did not decide whether the investigations into Laker were “sham” investigations stripped of protection, having affirmed denial on other grounds. (Id. at p. 777, fn. 20.)
Reasoning
The two-step framework, reviewed de novo. The court began with first principles. Anti-SLAPP rulings are reviewed de novo, with the court exercising “independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity.” (Laker, supra, 32 Cal.App.5th at p. 759, quoting Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) The statute “evaluates that motion using a two-step process: The first examines the nature of the conduct that underlies the plaintiff’s allegations to determine whether the conduct is protected by section 425.16; the second assesses the merits of the plaintiff’s claim.” (Ibid.) At step one, “‘arising from’ means ‘based on’” — the so-called nexus requirement — and at step two the plaintiff must show the claim has “at least ‘minimal merit.’” (Id. at p. 760, quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, and Park, supra, 2 Cal.5th at p. 1061.)
The illegality gateway closes. Before applying the framework, the court disposed of Laker’s threshold argument that the investigations were so “illegal” as to forfeit anti-SLAPP protection under Flatley v. Mauro (2006) 39 Cal.4th 299. The rule is exacting: “conduct must be illegal as a matter of law to defeat a defendant’s showing of protected activity. The defendant must concede the point, or the evidence conclusively demonstrate it.” (Laker, supra, 32 Cal.App.5th at pp. 761–762, quoting City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424.) Because the University conceded nothing and Laker’s evidence did not conclusively establish illegality, the gateway closed — “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.” (Id. at p. 762, quoting Hansen v. Department of Corrections & Rehabilitation (2009) 171 Cal.App.4th 1537, 1545.)
Defamation: protected activity, then absolute privilege. The court held the Aptekar investigation was an “official proceeding authorized by law,” statutorily grounded in Education Code section 89030, and that statements made to investigators in such a proceeding fall within section 425.16, subdivision (e)(1) and (2). (Laker, supra, 32 Cal.App.5th at pp. 764–765.) Holding otherwise “would almost certainly have a chilling effect,” making witnesses “reluctant to … share their candid views.” (Id. at p. 765.) The court rejected Laker’s timing argument — that the Pugliese e-mail came after the investigation closed — finding the e-mail “made during and in connection with issues relating to the ongoing Aptekar investigation,” which remained under review. (Id. at pp. 765–766.) Critically, the speech was not mere evidence; it was “the basis of Laker’s defamation claims,” lying “at the heart of his defamation claim rather than being merely ‘incidental’ to it.” (Id. at pp. 767–768, citing Baral v. Schnitt (2016) 1 Cal.5th 376, 394.) At step two, the absolute litigation privilege of Civil Code section 47, subdivision (b), barred the claim: all of Laker’s defamation evidence consisted of statements “made ‘in any … official proceeding authorized by law,’” which “is inadmissible.” (Id. at pp. 769–770.)
The dispositive move — retaliation by investigation does not “arise from” speech. The retaliation analysis is the opinion’s doctrinal core. Applying Park’s element-based test — “courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability” — the court held that Laker’s allegation of three “meritless investigations” and a “red flag” arose from unprotected conduct. (Laker, supra, 32 Cal.App.5th at pp. 771, 772, quoting Park, supra, 2 Cal.5th at p. 1063.) The court quoted Park’s controlling formulation: “‘while discrimination may be carried out by means of speech … neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a … retaliatory consideration.’” (Id. at p. 772.) The injury-producing conduct was the decision to investigate and to red-flag — “the speech is not — by itself — the basis of the claim.” (Id. at pp. 772–773.) “Acts of governance mandated by law, without more, are not exercises of free speech or petition.” (Id. at p. 773.)
The competing authorities, distinguished. The University marshaled Okorie, Vergos, Hansen, and Gallanis-Politis for the proposition that all aspects of an investigation are protected. The court rejected each. Park contained no such “broad holding” and did not “suggest that all aspects of internal investigations arise out of protected ‘petitioning activity.’” (Laker, supra, 32 Cal.App.5th at p. 773.) Okorie was distinguishable because there “the speech at issue is explicitly alleged to be the injury-producing conduct,” whereas Laker challenged the decision to investigate. (Id. at pp. 773–774, quoting Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 593.) Vergos, Hansen, and Gallanis-Politis involved claims against individuals whose communicative conduct was the gravamen — not “the decisions made by organizational defendants such as the University.” (Id. at pp. 774–775.) The court drew out a structural observation: “courts appear more likely to find that claims arise out of protected conduct when they are based on the actions of individuals,” and “[t]he outcome of the ‘arising under’ analysis … appears to differ between institutional and individual defendants.” (Id. at pp. 775–776.) Conflating discriminatory decisions with the speech reaching them “could render the anti-SLAPP statute ‘fatal for most harassment, discrimination, and retaliation actions against public employers.’” (Id. at p. 776, quoting Park, supra, 2 Cal.5th at p. 1067.)
No adverse-action element at step one. The court also rejected the University’s argument that, absent an adverse employment action, the retaliation claim necessarily arose from protected activity. The court found “no case for the proposition that an adverse employment action is a necessary element of the first step of the anti-SLAPP analysis,” and noted that under Park “the initiation of an investigation can itself constitute abusive conduct unprotected by section 425.16.” (Laker, supra, 32 Cal.App.5th at pp. 776–777.) Laker’s theory was precisely that the investigations were “not a good faith investigation into employee wrongdoing but itself constituted a retaliatory action.” (Id. at p. 777.)
Baral parsing — striking only the protected sliver. The court then split the retaliation count. Following Baral, when relief is sought on multiple allegations, “the allegations that arise from unprotected activity are ‘disregarded,’” and “‘[a]llegations of protected activity that merely provide context, without supporting a claim for recovery’ … ‘cannot be stricken.’” (Laker, supra, 32 Cal.App.5th at p. 772, quoting Baral, supra, 1 Cal.5th at pp. 394, 396.) The court expressly endorsed Baral’s displacement of the older “gravamen” analysis, agreeing with Sheley v. Harrop and Justice Rothschild’s Okorie dissent that “‘Baral has eliminated the “gravamen” analysis.’” (Id. at p. 772, fn. 19.) Paragraph 90(a)’s allegation that the University retaliated by “publishing false and defamatory statements” was not “‘merely incidental’” context — it “appears as the first item in Laker’s list of retaliatory actions,” and “protected speech forms the basis of the defamation allegation in Laker’s retaliation claim.” (Id. at pp. 777–778.) That protected sliver therefore satisfied step one — but, like the standalone defamation claim, it was barred by the litigation privilege at step two, so the court struck only that allegation while affirming denial as to the rest. (Id. at p. 778.)
Fees follow partial victory. Because both McVey (who prevailed entirely) and the University (which prevailed in part) “successfully move[d] to strike,” both were prevailing parties under section 425.16, subdivision (c)(1) — though the University could not recover fees “incurred in moving to strike the claim on which it did not prevail.” (Laker, supra, 32 Cal.App.5th at pp. 778–779.)
Significance
It is a leading post-Park, post-Baral roadmap for employer anti-SLAPP motions. Laker sits squarely in the line running from Park v. Board of Trustees (2017) and Baral v. Schnitt (2016). Park taught that a FEHA claim does not arise from protected activity merely because protected investigations and statements supply the evidence; Baral taught that the anti-SLAPP analysis operates on “claims” within a cause of action, not the count as a whole. Laker fuses the two: it refuses to let an employer convert every retaliation suit into a SLAPP by gesturing at the investigation in the background, while still requiring courts to surgically strike any genuinely speech-based allegation. (Laker, supra, 32 Cal.App.5th at pp. 772, 777–778.)
It crystallizes the institutional/individual distinction. Although the court was careful to say the distinction is not “a formal element” of the analysis, Laker openly acknowledges that the “arising from” outcome “appears to differ between institutional and individual defendants.” (Laker, supra, 32 Cal.App.5th at pp. 775–776.) Claims attacking an organization’s decision tend to survive; claims attacking an individual’s communicative conduct in handling a grievance tend to be struck. That observation — drawn from Vasquez, Area 51, and Whitehall — gives practitioners a predictive heuristic for pleading and for choosing defendants.
Its limits are real. The decision came down while the Supreme Court had review pending in Wilson, Bonni, and Melamed on the relevance of an employer’s alleged discriminatory or retaliatory motive to the “arising from” inquiry. (Laker, supra, 32 Cal.App.5th at p. 765, fn. 15.) Laker also leaves the litigation privilege as a powerful step-two backstop: even speech-based allegations that clear step one can be defeated wholesale if they consist of statements in an official proceeding. (Id. at p. 778.)
Key quotes
“[W]hile discrimination may be carried out by means of speech … neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.” (Laker, supra, 32 Cal.App.5th at p. 772.)
“The ‘arising from’ test functionally narrows the scope of the anti-SLAPP statute. Investigations necessarily involve petitions and speech. An unduly broad reading of the anti-SLAPP statute ‘would subject most, if not all, harassment, discrimination, and retaliation cases to motions to strike.’” (Id. at pp. 766–767.)
“When relief is sought based on more than one allegation, some of which arise from activity protected by the anti-SLAPP statute and some of which do not, the allegations that arise from unprotected activity are ‘disregarded.’ … ‘[A]llegations of protected activity that merely provide context, without supporting a claim for recovery’ are not subject to section 425.16.” (Id. at p. 772.)
Practice pointer
Plaintiff’s counsel defending a FEHA retaliation claim against an anti-SLAPP motion: plead and argue the decision, not the talk. Anchor each retaliatory act in conduct — the launching of a pretextual investigation, the “red flag,” the denial of access or promotion — and treat any statements as evidence of motive, not as the wrong itself. Laker and Park hold that “acts of governance,” even when carried out through speech, do not “arise from” protected activity. Where the defendant is an institution rather than an individual, lean into the Laker observation that organizational decisions are less likely to be deemed protected, and resist naming the individual investigators as defendants when their communicative conduct could become the gravamen. Anticipate Baral parsing: scrub the complaint so that no count smuggles in a freestanding defamation or speech allegation that the court can excise and strike. On the defense side, Laker is a reminder to move surgically — strike the specific speech-based allegations under Baral rather than the whole count — and to hold the absolute litigation privilege in reserve as a step-two argument for any statement made in an official investigation. Either way, the illegality gateway is essentially closed unless you can show illegality conceded or conclusively established as a matter of law under Flatley.
Open questions
The “sham investigation” exception. Because the court affirmed denial of the motion on other grounds, it expressly declined to decide “Laker’s claim that the three investigations into his conduct do not constitute ‘protected activity’ because they are the result of ‘sham’ investigations.” (Laker, supra, 32 Cal.App.5th at p. 777, fn. 20.) Whether and when a genuinely pretextual investigation loses protection remains unresolved here.
The role of retaliatory motive at step one. The court noted the Supreme Court had granted review in Wilson v. Cable News Network, Inc., Bonni v. St. Joseph Health System, and Melamed v. Cedars-Sinai Medical Center to address “the relevance of an employer’s alleged discriminatory or retaliatory motive in conducting an investigation to determine whether claims arise from protected activity,” a question Laker did not finally settle. (Laker, supra, 32 Cal.App.5th at p. 765, fn. 15.)
The institutional/individual line. The court declined to make the distinction between organizational and individual defendants “a formal element” of the analysis, leaving open how doctrinally fixed that observed divergence in outcomes really is. (Laker, supra, 32 Cal.App.5th at p. 776.)