In yet another installment of the gravamen of the complaint conundrum, the California Supreme Court is currently reviewing Park v. Board of Trustees of California State University (2015) 239 Cal.App.4th 1258. The issue is whether the SLAPP statute, Code of Civil Procedure section 425.16, “authorize[s] a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an ‘official proceeding authorized by law’ (subd. (e)) but does not seek relief against any participant in that proceeding based on his or her protected communications?” Say what?
In Park, plaintiff sued a university alleging racial discrimination as grounds for denial of tenure. The university filed a SLAPP motion arguing protected conduct in the form of official proceedings. The trial court denied the SLAPP motion, finding that the gravamen of the complaint was not protected activity such as the tenure review process, but rather, discrimination against plaintiff based on race. Because it denied the motion for lack of protected activity, the trial court did not reach the probability of success on the merits. But the Court of Appeal reversed, holding that alleged discriminatory motivations aside, since all of the operative facts involved various tenure review processes and communications, the gravamen of the complaint was in fact claims arising from protected activity. The Court of Appeal remanded for the trial court to consider plaintiff’s probability of success on the merits, but the high court intervened.
Park is still in the briefing stage, but could be far-reaching, depending on how it is decided. The grant of review itself is curious, given the narrow holding in Park that all of the allegations involved protected activity, and the fact that neither court reached the reasonable probability of success prong. Following the statutory scheme, courts have stayed away from injecting motive into the protected activity analysis. And no matter how tempting, carving out exemptions for suits brought solely to challenge “the validity of an action taken by a public entity” is bound to generate yet more volumes of SLAPP decisions. Stay tuned!