Tuszynska v. Cunningham
199 Cal. App. 4th 257
| Cal. Ct. App. | 2011Background
- RSA represents law enforcement/public safety employees; RSA-LDT funds legal representation for RSA members.
- Tuszynska, an RSA-LDT panel attorney, alleges she received fewer referrals after Cunningham became administrator, with male attorneys getting more cases.
- Allegations span 2003–2009: assignments dropped after Cunningham’s tenure; meetings criticized; funding decisions affecting her cases.
- Plaintiff claims gender discrimination under FEHA, Unruh Act, and California Constitution, based on referral/funding practices.
- Trial court denied anti-SLAPP motions, ruling alleged discrimination was not based on protected petitioning activities; defendants appeal.
- Court concludes plaintiff’s claims arise from protected attorney-selection and litigation-funding decisions made on behalf of RSA members; remands for merits evaluation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claims arise from protected activity under §425.16(e)(2). | Tuszynska argues conduct is not protected petitioning. | Defendants contend selections/funding decisions are protected. | Yes; attorney selection and funding decisions are protected activity. |
| Whether the gravamen of the claims is based on protected activity. | Claims rest on discriminatory motive, not on communications. | Claims rest on protected decisions and related communications. | Gravamen rests on protected decisions; disregard artificial distinction. |
| Whether the anti-SLAPP first step was satisfied and the case should proceed to merits. | First step failed to consider merits; discrimination claims should be analyzed on their own. | First step met; case should be evaluated for probability of prevailing. | First step satisfied; remand to assess likelihood of prevailing on merits. |
Key Cases Cited
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (defines arising from protected activity and two‑step analysis; 90–95 remand guidance)
- Hylton v. Frank E. Rogozienski, Inc., 177 Cal.App.4th 1264 (Cal. App. 4th 2009) (protects that gravamen governs anti‑SLAPP application)
- Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal.App.4th 658 (Cal. App. 4th 2005) (claims based on petitioning activities; communications central)
- Taheri Law Group v. Evans, 160 Cal.App.4th 482 (Cal. App. 4th 2008) (client-stealing; communications about pending lawsuits tied to claims)
- Vergos v. McNeal, 146 Cal.App.4th 1387 (Cal. App. 4th 2007) (claims based on protected communications in denial of grievances)