Symmonds v. Mahoney
243 Cal. Rptr. 3d 445
Cal. Ct. App. 5th2019Background
- Eddie Mahoney ("Mahoney" / Eddie Money) hired drummer Glenn Symmonds for ~41 years; Symmonds also sold merchandise and performed pre-show.
- Symmonds had a back injury and cancer; Mahoney allegedly joked publicly about Symmonds’ condition and refused accommodation requests.
- In 2015 Mahoney laid off the band, later rehired members but not Symmonds; Symmonds alleged age-, disability-, and medical-condition-based discrimination in violation of FEHA.
- Defendants (Mahoney and his corporation) filed a special motion to strike under the anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16), arguing the decision whom to perform with is protected speech on a matter of public interest.
- The trial court denied the anti-SLAPP motion, concluding the gravamen of Symmonds’ FEHA claim was discriminatory conduct (unprotected), not the selection decision; defendants appealed.
- The Court of Appeal reversed the denial as to the termination/selection allegation, holding the decision to replace Symmonds was protected conduct and remanded for the second-step anti-SLAPP analysis (plaintiff’s probability of prevailing). Fees/sanctions requests denied.
Issues
| Issue | Symmonds' Argument | Mahoney's Argument | Held |
|---|---|---|---|
| Whether the anti-SLAPP motion was timely | Motion was filed after amended complaint; original complaint made motion untimely | Court had discretion to accept later filing | Timeliness challenge rejected (trial court likely exercised discretion) |
| Whether Mahoney's decision to terminate/refrain from rehiring Symmonds is "act in furtherance of" free speech on a public-interest issue | Claim arises from discriminatory conduct (harassment, failure to accommodate), not the selection decision, so not protected | Selection of musicians advances musical expression and implicates public interest; thus protected under §425.16 | Court held selection/termination is protected conduct for step one of anti-SLAPP analysis |
| Whether plaintiff's FEHA claim "arises from" that protected conduct | The gravamen is discriminatory motive and ongoing conduct; protected-activity framing should not apply | The adverse employment action (termination) is an element of the FEHA claim and thus the claim arises from protected conduct | Court held FEHA claim arose from the protected termination because termination supplies an essential element (adverse action) |
| Whether plaintiff showed probability of prevailing (step two) | Plaintiff contends he produced evidence of discriminatory motive and adverse consequences | Defendants contend plaintiff lacks admissible evidence and termination had legitimate, non-discriminatory reasons | Not decided by appellate court; remanded to trial court to conduct step two and resolve evidentiary objections |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (music and concerts are expressive activity protected by the First Amendment)
- McCollum v. CBS, Inc., 202 Cal.App.3d 989 (First Amendment extends to artistic expression including music and concerts)
- Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4th 133 (creation/broadcasting of a TV show and related acts are in furtherance of free speech)
- Hunter v. CBS Broadcasting Inc., 221 Cal.App.4th 1510 (casting/anchor selection is protected activity under anti-SLAPP)
- Navellier v. Sletten, 29 Cal.4th 82 (illegitimacy/motive of defendant’s acts is for step two; not a threshold bar at step one)
- Park v. Board of Trustees of California State University, 2 Cal.5th 1057 (articulates analysis of whether a claim "arises from" protected activity and limits protection where selection does not further identifiable public-interest expression)
- Baral v. Schnitt, 1 Cal.5th 376 (anti-SLAPP two-step framework and that motions may attack parts of a claim)
- Wilson v. Cable News Network, Inc., 6 Cal.App.5th 822 (held discrimination claim’s gravamen was discriminatory conduct, not staffing decisions; contrasted in this opinion)
- Nam v. Regents of University of California, 1 Cal.App.5th 1176 (criticized Hunter; held alleged discriminatory motive may be relevant at threshold — also contrasted)
- Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264 (discusses tensions between workplace protections and free-speech interests)
- Rall v. Tribune 365 LLC, 31 Cal.App.5th 479 (wrongful termination claim arose from employer’s protected decision not to publish)