KYLE HUNTER, Plaintiff and Respondent, v. CBS BROADCASTING INC., Defendant and Appellant.
No. B244832
Second Dist., Div. Seven
Nov. 18, 2013
1510
Kelley Drye & Warren, Keri E. Campbell and Sarah L. Cronin for Defendant and Appellant.
Allred, Maroko & Goldberg, Gloria Allred, Michael Maroko and John Steven West for Plaintiff and Respondent.
OPINION
ZELON, J.—
INTRODUCTION
Kyle Hunter filed a discrimination complaint alleging that CBS Broadcasting Inc. refused to hire him as a weather news anchor because of his gender and age. CBS filed a motion to strike the complaint pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of Hunter‘s Complaint
On March 15, 2012, plaintiff Kyle Hunter filed an employment discrimination complaint alleging that two local CBS television stations—KCAL and KCBS—had “repeatedly shunned [him] for numerous on-air broadcasting positions... due to... his gender and his age.” The complaint alleged that, in 2010, KCBS chose not to renew the contract of its then weather anchor Johnny Mountain, which was “part of [a] plan to turn prime time weather broadcasting over to younger attractive females.”
Although Hunter expressed interest in “filling [Mountain‘s] vacancy,” KCBS decided to hire Jackie Johnson, a “young attractive female” who had previously served as the weather anchor on KCAL‘s prime time newscast. After learning that Johnson had been hired to replace Mountain at KCBS, Hunter notified KCAL that he would like to be considered for Johnson‘s former anchor position. KCAL, however, began “quietly interviewing... young, attractive females to [replace Johnson]” and told Hunter “there was not ‘an opening for [him] now.’ ”
In May of 2010, KCAL posted a “sham” notice regarding its weather anchor position. At the time it posted the notice, KCAL had already hired “an attractive younger female” named Evelyn Taft, “whose age and gender were key considerations in the hiring decision.” When Hunter learned about Taft‘s hiring, he contacted the station manager and was told that he had not been considered for the position because KCAL ” ‘catered to... male viewers’ ” and that Hunter ” ‘wouldn‘t be the type men would want to look at.’ ”
Hunter‘s complaint alleged that he was “far more qualified, and far more experienced” to serve as a weather anchor than either Johnson or Taft. The complaint further alleged that Hunter had been forecasting and broadcasting the weather for over 23 years, had won several prestigious awards and was certified by the American Meteorological Society (AMS). Taft, on the other hand, had only “two or three years of experience,” was not certified by the AMS and “ha[d] not won any broadcast awards.”
B. CBS‘s Motion to Strike the Complaint Pursuant to Code of Civil Procedure Section 425.16
1. Summary of CBS‘s motion to strike and supporting evidence
On May 29, 2012, CBS filed a motion to strike Hunter‘s complaint pursuant to
In support of its motion, CBS submitted a declaration from Scott Diener, who was the vice-president and news director of KCBS and KCAL. Diener‘s declaration stated that the “duopoly” of KCBS and KCAL (collectively “the duopoly“) made up the “nation‘s largest local television news operation.” According to Diener, the “number one reason why people watch[ed] the local news” was to obtain information about the weather. As a result, the duopoly‘s weather anchors were “local celebrities” who had a significant effect on newscast ratings.
Diener, whose duties included “recruiting and hiring... staff members,” explained that selecting on-air news personnel, and the weather anchor in particular, was “one of the most critical decisions in putting together a news team. The anchor must not only be knowledgeable and reliable with respect to the weather forecasts, but also must be a personality whom people want to invite into their home on a daily basis. The weather anchor has to inspire confidence and trust while being likeable and inviting to the public.”
Diener explained that, shortly after he became the duopoly‘s news director in January of 2010, he received an e-mail from Hunter stating that he would like to be “considered for any available weather anchor positions—even fill-in work.” Diener reviewed Hunter‘s “demo reel” and “did not believe he had the talent, skill or on-air presence to be an on air weather broadcaster in the Los Angeles market.” Diener also felt that Hunter‘s presentation was not “polished” and that his “on-air persona was hokey and over the top.” Over the next two months, Hunter continued to send Diener numerous e-mails “with requests for employment, brochures, links to his demo reels [and] invitations to lunch and dinner.”
Diener also explained why the duopoly had selected Johnson and Taft to serve as its two prime time weather anchors. According to Diener, he had chosen Johnson to fill Johnny Mountain‘s vacated position at KCBS based on her six years of experience as the prime time weather anchor at KCAL. After promoting Johnson to KCBS, the duopoly began searching for a candidate to fill Johnson‘s vacancy at KCAL. Diener received dozens of submissions for the opening, which he narrowed to eight candidates consisting of five men and three women. Hunter was not considered. The two finalists were Evelyn Taft, a female under the age of 40, and Jim Castillo, a male over the age of 40. Taft had a degree in broadcast journalism from the University of Southern California and had previously worked as a weather anchor in Santa Maria and Salinas, California. Between 2008 and 2010, Taft had served as a weather anchor in San Francisco, which was then the sixth largest news market in the country. Taft and Castillo both auditioned for the position, but Diener chose to hire Taft.
Shortly after he hired Taft, Diener internally promoted Josh Rubinstein to serve as the weather anchor on KCBS‘s morning show and hired Richard Fields to serve as a “weekend and fill-in weather anchor.” Following Taft‘s hire, the duopoly had five weather anchors on staff: three males over the age of 40 and two females under the age of 40. Diener specifically denied that he had considered the gender or age of Johnson, Taft, Hunter or any other candidate in making his hiring decisions.
In his opposition, Hunter argued that the court should deny CBS‘s motion to strike because the “gravamen” of his claims “was discrimination rather than free speech.” Hunter contended that
Hunter also argued that even if
In support of his opposition, Hunter provided a declaration asserting that he had “been involved in weather broadcasting in one form or another” since 1985. Hunter‘s declaration contained a detailed work history that included, among other things, numerous weather newscast production positions and several on-air weather anchor positions. The declaration also described Hunter‘s education and listed various meteorology-related awards and certifications he had received in the past. According to Hunter, he was generally “well-liked by [his] co-workers and well-regarded in [his] profession.”
Hunter‘s declaration also discussed his efforts to obtain a prime time weather anchor position at KCBS and KCAL. Hunter asserted that he initially contacted CBS after learning that Johnny Mountain‘s contract would not be renewed at KCBS. Hunter told CBS he would like to be interviewed for the position and provided a resume and broadcast samples. When Hunter learned CBS had hired Johnson to replace Mountain, he contacted Scott Diener about obtaining an interview to fill Johnson‘s former position.
Hunter‘s declaration also stated that he had reviewed the qualifications of several other male candidates who had applied for the KCAL weather anchor position, including Jim Castillo, Josh Rubinstein and Kai Goldberg. Hunter contended that, based on his “knowledge and experience,” he “knew” that each of the three men was “qualified to be a prime-time weather broadcaster for KCBS and KCAL.”
3. Trial court proceedings
At the motion hearing, CBS argued that
Hunter, however, argued that the “act” underlying his claims was CBS‘s adoption of a “hiring policy” that “impose[d] a ban on the hiring of males from the most select positions.” Hunter asserted that CBS had failed to identify a “single [case] that says... producers of television products are immune from FEHA liability” or that “hiring in this context is somehow protected First Amendment activity.” According to Hunter, his discrimination action was “a run of the mill employee case that precede[d] the creative process. To rule otherwise is to rule that there is a complete immunity to FEHA.”
Following the hearing, the trial court issued an order denying CBS‘s motion to strike “on the grounds that [CBS] has not shown that its hiring decisions regarding weather anchors constitute conduct in furtherance of [CBS‘s] right of free speech in connection with a public issue.” CBS filed a timely appeal of the court‘s order. (See
A. Summary of Section 425.16 and Standard of Review
“An appellate court reviews an order granting an anti-SLAPP motion under a de novo standard. [Citation.] In other words, we employ the same two-pronged procedure as the trial court in determining whether the anti-SLAPP motion was properly granted.” (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1651-1652 [107 Cal.Rptr.3d 294].)
Under the two-step process applicable to anti-SLAPP motions, we must first determine whether CBS made a threshold showing that Hunter‘s claims are from a protected activity. The trial court concluded that CBS failed to make such a showing, and denied the motion on that basis.
In assessing whether a cause of action arises from protected activity, ” ‘we disregard the labeling of the claim [citation] and instead “examine the principal thrust or gravamen of a plaintiff‘s cause of action... ‘.... We assess the principal thrust by identifying “[t]he allegedly wrongful and injury-producing conduct... that provides the foundation for the claim.” [Citation.] If the core injury-producing conduct upon which the plaintiff‘s claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. [Citation.]’ [Citation].” (Tuszynska, supra, 199 Cal.App.4th at p. 267.) “[T]he critical point is whether the plaintiff‘s cause of action itself was based on an act in furtherance of the defendant‘s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695], italics omitted.)
When evaluating whether the defendant has carried its burden under the first prong of the anti-SLAPP statute, “courts must be careful to distinguish allegations of conduct on which liability is to be based from allegations of motives for such conduct. ‘[C]auses of action do not arise from motives; they arise from acts.’ [Citation.]” (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 823 [150 Cal.Rptr.3d 224] (Anapol).) ” ‘The court reviews the parties’ pleadings, declarations and other supporting documents to determine what conduct is actually being challenged, not to determine whether the conduct is actionable.’ [Citation.]” (Id. at p. 822.)
The allegations in Hunter‘s complaint make clear that the injury-producing conduct underlying his employment discrimination claims consists of CBS‘s decisions about whom to hire as the on-air weather anchors for its KCBS and KCAL prime time newscasts. The complaint repeatedly asserts that (1) CBS chose “to hire young attractive women” to serve “as weathercasters“; (2) CBS “shunned [Hunter] for numerous on-air [weather] broadcasting positions... due to... his gender and his age“; and (3) these “employment decisions” violated FEHA. Indeed, all of the allegations underlying Hunter‘s discrimination claims relate to the allegedly unlawful manner in which CBS selected its weather anchors. CBS contends that this conduct—the selection of a weather anchor—qualifies as an act in furtherance of the exercise of free speech. We agree.
“An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right.” (Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [122 Cal.Rptr.3d 264] (Tamkin).) Our courts have previously recognized that “[r]eporting the news” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 164 [1 Cal.Rptr.3d 536] (KCOP)) and “creat[ing]... a television show” both qualify as “exercise[s] of free speech” (Tamkin, supra, 193 Cal.App.4th at p. 143; see KCOP, supra, 110 Cal.App.4th at p. 164). CBS‘s selections of its KCBS and KCAL weather anchors, which were essentially casting decisions regarding who was to report the news on a local television newscast, “helped advance or assist” both forms of First Amendment expression. The conduct therefore qualifies as a form of protected activity. (See Tamkin, supra, 193 Cal.App.4th at p. 143 [writer‘s use of plaintiffs’ names in a draft script of a television show qualified as protected activity because it “helped to advance or assist in the creation, casting, and broadcasting of an episode of a popular television show“]; KCOP, supra, 110 Cal.App.4th at p. 164 [allegedly unlawful newsgathering technique was in furtherance of 1st Amend. speech rights because it aided in the reporting of news]; Doe v. Gangland Productions, Inc. (9th Cir. 2013) 730 F.3d 946, 953 (Gangland) [“. . . California courts have held that pre-publication or pre-production acts such as investigating, newsgathering, and conducting interviews constitute conduct that furthers the right of free speech.”].)
Hunter, however, asserts that there are several reasons why the trial court correctly concluded that
Tuszynska, supra, 199 Cal.App.4th 257, which also involved a gender discrimination claim, is illustrative. The defendants in Tuszynska administered a “prepaid legal plan” that was “created [by an employee organization]... to fund and provide legal representation and assistance to [the organization‘s] members in job-related civil, criminal, and administrative matters.” (Id. at p. 262.) The defendants selected counsel for members in need of legal representation from a panel of preapproved attorneys. The plaintiff, who was the only female on the panel, filed a discrimination complaint alleging that plan administrators had refused to assign her cases on the basis of her gender. The defendants filed a motion to strike the complaint arguing that the plaintiff‘s claim was predicated on their attorney selection decisions, which qualified as an act in furtherance of protected petitioning activity. In opposition, the plaintiff argued that her “allegations of gender discrimination [were] not based on [the defendants’ attorney selections,] but [were] instead based on defendants’ purportedly distinctive ‘conduct’ in failing to assign cases to her ‘because she is a woman.’ ” (Id. at p. 268.) The trial court agreed, reasoning “that the ‘gravamen’ of plaintiff‘s claims was that ‘because she is a woman, she is not getting cases.’ ” (Ibid.)
The appellate court reversed, concluding that the trial court had improperly “conflate[d] defendants’ alleged injury-producing conduct---their failure to assign new cases to plaintiff...—with the unlawful, gender-based discriminatory motive plaintiff was ascribing to defendants’ conduct—that plaintiff was not receiving new assignments or continued funding because she was a woman.” (Tuszynska, supra, 199 Cal.App.4th at p. 268, italics omitted.) The court explained that
This case cannot be meaningfully distinguished from Tuszynska. Hunter‘s employment discrimination claims assert that CBS did not hire him to serve as a weather anchor because of his age and gender. As in Tuszynska, his claims are thus based squarely on CBS‘s decisions regarding its choice of a weather anchor, which were acts in furtherance of its First Amendment rights. Whether CBS had a gender- or age-based discriminatory motive in not selecting Hunter to serve as a weather anchor is an entirely separate inquiry from whether, under
Hunter, however, argues that two other decisions, Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 [65 Cal.Rptr.3d 469] (Alta Loma) and Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 [130 Cal.Rptr.3d 410] (Martin), have held that claims predicated on acts of discrimination are generally not subject to the anti-SLAPP statute. In Alta Loma, supra, 154 Cal.App.4th 1273, a landlord was attempting to remove a 13-unit apartment building from the rental market. As required under local rent control regulations, the landlord notified the tenants they had 120 days to vacate the premises. In response, the plaintiff, a tenant in the building, informed the landlord she was disabled and therefore legally entitled to a one-year notice period. Although the plaintiff provided various forms of evidence to substantiate her condition, the landlord did not believe she had established any disability. Shortly after the 120-day notice period expired, the landlord initiated an unlawful detainer action. The plaintiff, in turn, filed a discrimination complaint alleging the landlord had refused to accommodate her disability. The landlord filed a motion to strike the complaint pursuant to
We affirmed, explaining that the plaintiff‘s lawsuit did not challenge “any act [the landlord] took with respect... [to] the unlawful detainer action[] it filed. [Instead, the plaintiff] sued [the defendant] for its alleged acts in failing to make a reasonable accommodation for [the plaintiff‘s] disability.” (Alta Loma, supra, 154 Cal.App.4th at p. 1285.) The court noted that
Martin, supra, 198 Cal.App.4th 611, involved analogous circumstances. The plaintiff filed claims against his employer alleging that he had been discriminated against for refusing to retaliate against an employee. According to the complaint, the defendant‘s CEO had asked the plaintiff to take disciplinary action against an employee who accused the CEO‘s executive assistant of racial discrimination. After the plaintiff advised the CEO that conduct would be unlawful, the CEO started taking steps to “erod[e] Plaintiff‘s responsibilities,” which included (among other things) appointing employees without the plaintiff‘s consultation and restructuring the plaintiff‘s division while he was on leave. (Id. at p. 618.) The CEO also gave the plaintiff a critical review before the board of directors and demanded that the board require the plaintiff to report to him. When the plaintiff complained about his review, the CEO pressured him to resign. The plaintiff eventually filed claims for wrongful retaliation, racial discrimination and defamation.
The defendant moved to strike the complaint arguing that all of the claims derived from statements the CEO allegedly made during the board meeting. Although the trial court granted the motion with respect to the defamation claim, which was directly predicated on allegedly false statements the CEO had made at the board meeting, it denied the motion with respect to the remainder of the plaintiff‘s claims. The defendant appealed, arguing that all of the plaintiff‘s claims were governed by
The appellate court affirmed, explaining that most of the allegations in the plaintiff‘s complaint had nothing to do with any protected activity. According to the court, the plaintiff‘s primary assertion was that, after he had refused “to take punitive action against one of his employees,” the CEO began harassing the plaintiff‘s subordinates and taking measures to undermine the plaintiff‘s authority. (Martin, supra, 198 Cal.App.4th at p. 624.) The court further explained that the CEO‘s conduct and statements at the board meeting were “mentioned only minimally in plaintiff‘s pleadings.” (Id. at p. 625.) In the court‘s view, the pleadings’ allegations demonstrated that the “gravamen” of the plaintiff‘s action was retaliatory conduct unrelated to any petitioning activity.
Although Alta Loma and Martin both involved discrimination claims, neither case held, as Hunter suggests, that discrimination claims are generally
Hunter next contends that, even if his claims arise from CBS‘s employment decisions,
Hunter also argues that applying
In a closely related argument, Hunter asserts that CBS has failed to identify any authority suggesting that the “First Amendment protects employment discrimination.” However, this argument again “confuses the threshold question of whether the SLAPP statute applies with the question whether [the plaintiff] has established a probability of success on the merits. The Legislature did not intend that in order to invoke the special motion to strike the defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law. If this were the case then the inquiry as to whether the plaintiff has established a probability of success would be superfluous.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305 [106 Cal.Rptr.2d 906].)
2. CBS‘s hiring of a weather anchor was in connection with a public issue or issue of public interest
Hunter alternatively contends that even if CBS‘s hiring decisions were in furtherance of its free speech rights, that conduct does not qualify as protected activity under
During the trial court proceedings, Hunter did not raise any argument related to the “public issue” element of
Even if Hunter had not waived the argument, we would reject it on substantive grounds. Hunter essentially contends that the public had no interest in who CBS selected to serve as its weather anchor. His argument is predicated on the assumption that, to qualify as protected activity under
3. On remand, the trial court should determine whether Hunter has demonstrated a reasonable probability of prevailing on the merits
Hunter also argues that even if
Because the trial court concluded CBS failed to meet the first prong of the anti-SLAPP statute, it neither addressed whether Hunter met his evidentiary burden under the “merits prong” of the statute (Navellier, supra, 29 Cal.4th at p. 94), nor considered the admissibility of the parties’ evidence. Under such circumstances, the more prudent course is to remand the matter to the trial court to determine in the first instance whether Hunter demonstrated a reasonable probability of prevailing on the merits of his causes of action. (Tuszynska, supra, 199 Cal.App.4th at p. 267 [reversing order finding plaintiff‘s claims did not arise from protected activity and remanding to trial court to conduct second prong analysis]; DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568 [92 Cal.Rptr.2d 755] [same];
DISPOSITION
The trial court‘s order denying appellant‘s motion to strike pursuant to
Woods, Acting P. J., and Segal, J.,* concurred.
Respondent‘s petition for review by the Supreme Court was denied February 26, 2014, S215473.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.