Cho v. Chang
161 Cal. Rptr. 3d 846
Cal. Ct. App.2013Background
- Chang sued Cho and Midway for FEHA claims and related torts, including sexual harassment and assault; Cho cross-claimed for defamation and IIED based on Chang’s reports and statements.
- Chang filed a special motion to strike the cross-complaint under CCP 425.16 (anti-SLAPP) arguing the challenged conduct was protected activity.
- The trial court held that some allegations in the cross-complaint involved protected activity and others did not, striking the protected portions while leaving the unprotected theories intact.
- Two incidents at Midway events (Nov. 24, 2010 and Dec. 30, 2010) allegedly involved groping and fondling by Cho.
- Chang reported the incidents to Midway management and later to the EEOC/DFEH; after investigation, she filed suit in May 2011.
- Cho’s cross-claim remained partially viable for defamation/IIED based on Chang’s written and oral statements, while portions based on protected activity were struck and the rest proceeded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mixed cross-claim could be partially struck. | Chang urged that protected activity be struck and unprotected survive. | Cho argued no proper separation; improper to strike partial liability. | Yes; court may strike protected parts while preserving unprotected theories. |
| Whether Chang’s protected activity is sufficient to sustain a partial anti-SLAPP dismissal. | Chang asserted writings/communications about the incidents were protected. | Some statements to coworkers were not protected. | Protected activity established for portions; court properly struck those parts. |
| Whether attorney fees should be awarded to Chang after partial success. | Chang sought attorney fees for successful anti-SLAPP portion. | Partial success did not justify fees. | Attorney fees denied; partial success did not yield fees. |
Key Cases Cited
- Taus v. Loftus, 40 Cal.4th 683 (Cal. 2007) (probability need not cover all claims; mixed actions treated carefully under anti-SLAPP)
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (Cal. 2011) (mixed claims; cannot defeat SLAPP by pleading tactic; focus on protected vs unprotected activity)
- Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal.App.4th 294 (Cal. 2001) (pegged limitation on treating mixed pleadings under anti-SLAPP)
- Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal.App.4th 1539 (Cal. 2010) (reiterates parsing mixed claims and striking protected portions)
- Wallace v. McCubbin, 196 Cal.App.4th 1169 (Cal. 2011) (discusses extent of dismissal in mixed actions under anti-SLAPP)
- City of Colton v. Singletary, 206 Cal.App.4th 751 (Cal. 2012) (recognizes parsing mixed causes of action for SLAPP analysis)
- Mann v. Quality Old Time Service, Inc., 120 Cal.App.4th 90 (Cal. 2004) (discusses effect of protected claims on entire cause of action)
- Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal.App.4th 1539 (Cal. 2010) (discusses partial strike of protected activity in mixed claims)
- Comstock v. Aber, 212 Cal.App.4th 931 (Cal. 2012) (supports approach to mixed claims under anti-SLAPP)
- Burrill v. Nair, 217 Cal.App.4th 357 (Cal. 2013) (discusses nuances in mixed action SLAPP analysis)