Laker v. Bd. of Trs. of the Cal. State Univ.
244 Cal. Rptr. 3d 238
Cal. Ct. App. 5th2019Background
- Plaintiff Jason Laker, a university professor, sued San Jose State University (the University) and Associate Dean Mary McVey for defamation and FEHA retaliation arising from internal investigations into Professor Lewis Aptekar and separate complaints against Laker.
- Aptekar was the subject of a Title IX investigation after a student complaint; an investigator concluded Aptekar sexually harassed the student. University administrators (including McVey and HR official Beth Pugliese) exchanged statements during and about that investigation.
- In early 2016, the University investigated Laker based on three complaints from faculty (one by Aptekar alleging Laker encouraged students to report him, others alleging different misconduct). Laker alleges these were meritless and retaliatory.
- Laker’s defamation claim centers on statements that he knew of but failed to report Aptekar’s misconduct and was called a “liar”; the retaliation claim alleges (a) the University pursued three meritless investigations and red-flagged him, and (b) published defamatory statements to scapegoat him.
- Defendants moved to strike under California’s anti‑SLAPP statute (§ 425.16). The trial court denied the motion, and the University and McVey appealed. The Court of Appeal reversed in part and affirmed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements and investigation-related communications are "protected activity" under the anti‑SLAPP statute | Laker argued the investigations were sham/illegal and some statements were outside the investigation, so they are not protected | University/McVey argued statements to investigators and investigation-related communications are made in an "official proceeding" and are protected by § 425.16(e)(1)/(2) | Court: The Aptekar and related internal investigations qualify as "official proceedings"; the challenged statements were made in connection with those proceedings and are protected for anti‑SLAPP step one. |
| Whether Laker's defamation claim "arises from" protected activity (anti‑SLAPP nexus) | Laker contended the statements were evidence or incidental, not the basis of his claim | Defendants contended the defamatory statements themselves are the wrong alleged and thus the claim arises from protected activity | Court: The alleged defamatory statements to investigators and the February 2016 e‑mail form the basis of the defamation claim, so the claim arises from protected activity. |
| Whether Laker can show a probability of prevailing on the defamation claim (step two) | Laker relied on his pleadings and declarations; argued privilege does not apply because statements weren’t sufficiently related to the investigation | Defendants argued absolute litigation/official‑proceedings privilege (Civ. Code § 47(b)(3)) bars liability for statements made in or reasonably related to official proceedings | Court: The statements are covered by the absolute privilege for official proceedings, so Laker cannot show probability of success; defamation claim is stricken. |
| Whether the retaliation claim is subject to anti‑SLAPP and, if so, whether it survives | Laker argued the investigations and red‑flagging were adverse actions (unprotected); also alleged retaliation via defamatory statements | Defendants argued the investigations and investigation‑related communications arise from protected petition/speech | Court: Split result — retaliation allegations premised on the decision to bring investigations and to red‑flag Laker arise from unprotected conduct (anti‑SLAPP denied as to those allegations). But the retaliation allegation that relies on the same defamatory statements (i.e., publication of false statements) arises from protected activity and is subject to anti‑SLAPP; that subpart fails on step two because of the absolute privilege and must be stricken. |
Key Cases Cited
- Park v. Board of Trustees of California State University, 2 Cal.5th 1057 (Cal. 2017) (clarifies anti‑SLAPP two‑step test and the "arising from"/nexus inquiry)
- Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) (describes plaintiff's burden at anti‑SLAPP step two and that allegations of protected activity that do not support a claim are stricken)
- City of Cotati v. Cashman, 29 Cal.4th 69 (Cal. 2002) ("arising from" means "based on" for anti‑SLAPP nexus analysis)
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (illegal conduct as a matter of law can remove anti‑SLAPP protection; but illegality must be conclusively established)
- Hagberg v. California Federal Bank, 32 Cal.4th 350 (Cal. 2004) (expansive application of Civil Code § 47(b) absolute litigation privilege to official proceedings and related communications)
- Rand Resources, LLC v. City of Carson, 6 Cal.5th 610 (Cal. 2019) (section 425.16(e)(2) protects statements "in connection with" an issue under consideration; contemplates ongoing or immediately pending proceedings)
- Kibler v. Northern Inyo County Local Hospital, 39 Cal.4th 192 (Cal. 2006) (internal proceedings required by statute may qualify as "official proceedings" for anti‑SLAPP analysis)