Pechkis v. Trustees of the California State University
The Third District affirms the denial of an anti-SLAPP motion against two retaliation claims, holding that a defendant who shows the claims rest only “in part” on protected speech has not carried its first-step burden — it must analyze each claim element-by-element and identify which acts are protected.
Pechkis v. Trustees of the California State University (2026) ___ Cal.App.5th ___ [No. C103742]
Retaliation
Anti-SLAPP
FEHA / Whistleblower
Affirmed
In brief. Two married Chico State physics professors sued the CSU Trustees for FEHA and whistleblower retaliation, alleging that after they reported a department chair’s harassment and were constructively discharged, the university launched a “sham” investigation and contacted their new employer (Cal Poly) to sabotage the move. The Trustees moved to strike the two retaliation causes of action under the anti-SLAPP statute, arguing they rested “in part” on protected communications about the investigation. The Court of Appeal affirmed the denial: under Bonni, a movant must “identify what acts each challenged claim rests on and … show how those acts are protected,” and showing a claim is “based in part” on protected speech “does not necessarily establish the cause[] of action arise[s] from protected activity.” (Pechkis v. Trustees of the California State University (2026) No. C103742 (slip opn. at pp. 2, 6–11).)
By Jonathan J. Delshad
Draft for review · source-verification pending
Facts
The plaintiffs, Hyewon and Joseph Pechkis, were tenured physics professors at Chico State. (slip opn. at p. 3.) Hyewon alleged the department chair harassed her based on “perceived bias of women and [her] Korean ancestry and national origin,” aggressively confronting her until she “fear[ed] for her physical safety,” and that the university took no action when the couple reported it; she was diagnosed with PTSD, major depression, and anxiety from the hostile environment. (slip opn. at p. 3.) Feeling forced out, they accepted offers at Cal Poly, effectively giving up their tenured positions. (slip opn. at pp. 3–4.) The complaint alleged the university then “instigated a sham investigation” into Hyewon for a purported student-privacy (FERPA) violation based on old Korean-language blog posts and inaccurate translations, and that a vice provost “called Cal Poly … in an attempt to sabotage” the move, while a dean delayed the transfer of the professors’ lab equipment. (slip opn. at pp. 3–4.)
The complaint pleaded six causes of action, including FEHA retaliation (second cause) and whistleblower retaliation (sixth cause), both alleging the university retaliated by constructively discharging the professors and sabotaging their Cal Poly employment. (slip opn. at pp. 2, 4–5.)
Procedural history
The Trustees moved under Code of Civil Procedure section 425.16 to strike the second and sixth causes of action. (slip opn. at p. 5.) The trial court found the first anti-SLAPP step satisfied (the FERPA investigation was “an official proceeding authorized by law”) but denied the motion at the second step, finding the professors showed minimal merit and that constructive discharge was an adverse employment action. (slip opn. at p. 5.) Reviewing de novo, the Court of Appeal affirmed — but on the ground that the Trustees failed the first step. (slip opn. at pp. 5–6, 10–11.)
Issue
Does a defendant carry its first-step anti-SLAPP burden by showing that a challenged retaliation cause of action is based “in part” on protected speech — or must it analyze each claim element-by-element to identify which specific acts supply the elements of liability and how those acts are protected activity? (slip opn. at pp. 2, 6–7.)
Holding
Affirmed. The Trustees “ha[ve] not carried [their] burden on the first step,” because “whether the challenged causes of action are based in part on protected activity does not necessarily establish the causes of action arise from protected activity.” (slip opn. at pp. 2, 10–11.) Under Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009, a movant must “identify what acts each challenged claim rests on and … show how those acts are protected under a statutorily defined category,” and may not rely on a disapproved “gravamen” summary. (slip opn. at pp. 6–7.) The Trustees “provide[d] no analysis of the elements” of each cause of action, ignored unprotected bases for liability (constructive discharge; the decision to investigate), and wrongly assumed “one drop of protected conduct fatally poisons” the claims. (slip opn. at pp. 8–10.)
Reasoning
1. The first step requires a claim-by-claim, element-based showing. The court reaffirmed the two-step anti-SLAPP framework and, for step one, applied Bonni: courts “consider the elements of the challenged claim and what actions by the defendant supply those elements,” and the movant must “identify what acts each challenged claim rests on and … show how those acts are protected.” (slip opn. at pp. 5–7, quoting Bonni, supra, 11 Cal.5th at p. 1009.) Where a cause of action “contains multiple claims” and the movant fails to show how the conduct underlying some of them is protected, it “will not carry its first-step burden as to those claims.” (slip opn. at p. 7.)
2. “Based in part” on speech is not enough — and gravamen is out. The Trustees argued the retaliation claims “also are based on the protected speech” communicating the FERPA investigation to Cal Poly, so the motion “must still be granted.” (slip opn. at pp. 6–7.) The court rejected this as a forbidden gravamen analysis that “saddl[es] courts with … almost metaphysical problems about the ‘essence’ of a cause of action.” (slip opn. at p. 7, quoting Bonni.) Following Park v. Nazari (2023) 93 Cal.App.5th 1099, 1108–1109, a movant who wants a “surgical approach” must “propose where to make the incisions” by identifying each claim’s elements, the acts establishing them, and why those acts are protected — which the Trustees did not do. (slip opn. at pp. 7–8.)
3. The claims rest on unprotected conduct, too. The court identified non-speech bases for liability the Trustees ignored: both causes of action alleged retaliation by constructive discharge — an adverse employment action (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244) that is unprotected (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1072–1073) — and the initiation of the investigation, which is not protected when the claim rests on the investigation itself rather than investigation-related speech (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 773). (slip opn. at pp. 8–9.) The Trustees offered no argument that constructively discharging the professors was protected activity. (slip opn. at p. 9.)
4. An “official proceeding” does not protect every act within it. Although the investigation was a “proceeding authorized by law,” the court explained that “being a proceeding authorized by law does not shield all acts done within such a proceeding”; only “acts in furtherance of the right of petition or free speech” are protected. (slip opn. at pp. 9–10.) Quoting Park v. Board of Trustees, the court warned that treating the initiation of an investigation as automatically protected “‘could render the anti-SLAPP statute “fatal for most harassment, discrimination and retaliation actions against public employers.”’” (slip opn. at p. 10.) Because the Trustees moved against the causes of action “in their entirety” without proposing incisions, the court declined to “independently perform surgery,” and affirmed. (slip opn. at pp. 10–11.)
Significance
Pechkis is a useful plaintiff-side decision on a recurring defense maneuver: using the anti-SLAPP statute to strike FEHA and whistleblower retaliation claims against public employers by pointing to some protected speech embedded in the allegations. Applying Bonni and Nazari, the court holds that a movant cannot satisfy step one merely by showing a claim is “based in part” on protected activity; it must perform a claim-by-claim, element-based analysis and identify precisely which acts are protected — and if it instead moves to strike entire causes of action without “propos[ing] where to make the incisions,” the court will not do that work for it. The decision also reinforces that constructive discharge and the decision to investigate are unprotected adverse actions, and that an “official proceeding” does not cloak everything done within it. For public employees especially, Pechkis blunts the in terrorem use of anti-SLAPP motions (with their fee-shifting and discovery stay) against retaliation suits.
Key quotes
“[W]hether the challenged causes of action are based in part on protected activity does not necessarily establish the causes of action arise from protected activity under the anti-SLAPP statute.” (Pechkis, supra, No. C103742 (slip opn. at p. 2).)
“Defendant incorrectly assumes one drop of protected conduct fatally poisons both challenged causes of action.” (Pechkis, supra, No. C103742 (slip opn. at p. 8).)
Practice pointer
When a public employer brings an anti-SLAPP motion against a retaliation cause of action, hold it to Bonni’s and Nazari’s first-step rigor: it must isolate each claim, identify the specific acts that supply the elements of liability, and show why those acts are protected. If the motion targets an entire cause of action by gesturing at some protected communication, argue — as Pechkis holds — that “based in part” is not enough and that the court need not perform “surgery” the movant failed to propose. Emphasize the unprotected adverse actions in your pleading (constructive discharge, the decision to investigate, delays and interference) as independent bases for liability. For defense counsel, the lesson is to do the granular work: tie each numbered allegation to a protected-activity category, or risk denial — and remember that initiating an investigation does not automatically protect every act within it. (slip opn. at pp. 6–11.)
Open questions
The court took pains to note that “[i]ndividual allegations within the two retaliation causes of action may still be protected conduct susceptible to an anti-SLAPP motion” — it held only that the Trustees failed to make the required claim-by-claim showing for an entire-cause-of-action strike. (slip opn. at p. 10.) It therefore did not decide whether a properly “surgical” motion targeting the specific communications to Cal Poly might succeed, leaving that for a renewed or future motion. (slip opn. at pp. 10–11.) And because the court resolved the appeal at step one, it did not reach the merits (step two) of the professors’ retaliation showing, which the trial court had found sufficient. (slip opn. at p. 5.)