96 Cal.App.5th 722
Cal. Ct. App.2023Background
- Natalie Operstein, a CSUF linguistics professor, complained of colleague mistreatment; CSU retained Seyfarth Shaw (Regan) to investigate under CSU executive orders (internal investigatory proceedings).
- Regan’s December 2014 investigative report concluded Operstein’s allegations were unfounded and described her as uncollegial; Operstein later filed EEOC charges and multiple lawsuits against CSU and later sued Seyfarth and Regan (2020) alleging a biased investigation and defamation.
- Defendants moved to strike under the anti-SLAPP statute and supported their motion with investigative materials; the trial court issued a tentative ruling granting strike as to three causes of action and indicating other investigative allegations might be unprotected.
- Plaintiffs voluntarily dismissed the 2020 action the same day the tentative ruling issued; defendants then moved for fees and costs under section 425.16(c)(1), seeking $79,889.
- The trial court awarded 80% of the requested fees ($63,911), reasoning defendants would have only partially prevailed; both sides appealed.
- The Court of Appeal held defendants’ anti-SLAPP motion was wholly meritorious, reversed the partial-reduction of fees, and remanded with instructions to award the full $79,889; defendants recover appeal costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ alleged conduct is protected activity under §425.16 | Ross/Operstein: investigation and some noncommunicative acts fall outside anti-SLAPP (commercial/illegality exceptions; not an "official proceeding") | Seyfarth/Regan: investigation and report were actions in an official proceeding and investigatory conduct is protected under subdivisions (e)(1),(e)(2),(e)(4) | Court: All challenged conduct was protected (investigation was an official proceeding; both communicative and noncommunicative acts fall within §425.16(e)) |
| Whether defendants were "prevailing defendants" entitled to fees after plaintiffs’ voluntary dismissal | Plaintiffs: dismissal before hearing means fee award discretionary; indemnification concerns and other reasons justify dismissal unrelated to merits | Defendants: dismissal presumes defendants prevailed; under Liu/Coltrain analysis, defendants would have prevailed on the merits | Court: defendants prevailed; dismissal did not rebut presumption and de novo review shows anti-SLAPP motion was wholly meritorious |
| Whether statutory exceptions (commercial exception §425.17; Flatley illegality) apply | Plaintiffs: investigation implicated commercial exception / illegality exception; therefore anti-SLAPP inapplicable | Defendants: exceptions do not apply—no comparative advertising; allegations do not establish criminal illegality or concession of illegality | Court: Exceptions do not apply; Flatley limited to conceded or conclusively shown criminal illegality and §425.17(c) inapplicable |
| Whether fee award reduction for "partial" success and amount awarded was proper | Plaintiffs: court properly reduced fees because defendants would only partially prevail; also argued award excessive and inequitable | Defendants: motion was entirely meritorious; full fees should be awarded and reduction was improper | Court: Reduction based on partial-success theory was error; entire $79,889 must be awarded; other plaintiff policy/equity arguments rejected |
Key Cases Cited
- Laker v. Bd. of Trustees of California State Univ., 32 Cal.App.5th 745 (Cal. Ct. App. 2019) (CSU internal investigations under executive orders are "official proceedings" protected by anti-SLAPP)
- Bonni v. St. Joseph Health Sys., 11 Cal.5th 995 (Cal. 2021) (a claim is subject to anti-SLAPP if its elements arise from protected activity; analyze each alleged act separately)
- FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (Cal. 2019) (subdivision (e)(4) protects noncommunicative conduct tied to public issues and complements other §425.16 protections)
- Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (Cal. 2019) (speech under (e)(4) must both concern a public interest and meaningfully contribute to public discussion)
- Coltrain v. Shewalter, 66 Cal.App.4th 94 (Cal. Ct. App. 1998) (voluntary dismissal creates presumption defendant prevailed; court assesses whether dismissal was for reasons unrelated to merits)
- Liu v. Moore, 69 Cal.App.4th 745 (Cal. Ct. App. 1999) (trial court should analyze whether defendant would have prevailed on the merits when awarding fees after preadjudication dismissal)
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (illegality exception: anti-SLAPP inapplicable where speech was illegal as a matter of law, typically limited to criminality and where illegality is conceded or conclusively shown)
- Ketchum v. Moses, 24 Cal.4th 1122 (Cal. 2001) (successful SLAPP defendants are entitled to mandatory attorney fees under §425.16(c))
- Mendoza v. ADP Screening & Selection Servs., Inc., 182 Cal.App.4th 1644 (Cal. Ct. App. 2010) (investigative and screening activities can implicate public interest and be protected activity under anti-SLAPP)
- Traditional Cat Assn., Inc. v. Gilbreath, 118 Cal.App.4th 392 (Cal. Ct. App. 2004) (time-barred claims cannot satisfy the anti-SLAPP step two probability-of-success requirement)