Mahoney is a singer and songwriter who performs in concerts across the country. In 2015 he terminated his drummer, plaintiff and respondent Glenn Symmonds, who subsequently sued defendants for discrimination on the basis of age, disability, and medical condition. Defendants filed an anti-SLAPP motion arguing that Mahoney's decision as to which musicians performed with him was an act in furtherance of the exercise of his constitutional right of free speech in connection with an issue of public interest, and thus protected under section 425.16.
The trial court denied the motion, finding that Symmonds' cause of action arose from defendants' discriminatory conduct, not the decision to terminate him, and thus Symmonds' claim did not implicate Mahoney's free speech rights.
We hold that defendants met their burden to establish that Mahoney's decision to terminate Symmonds was protected conduct. Accordingly, we
BACKGROUND
A. Symmonds' allegations
On May 20, 2016, Symmonds and his coplaintiff, Tami Landrum, filed their first amended complaint (FAC), the operative pleading in this case. The FAC asserted 22 causes of action; only the first, for discrimination based upon age, disability, and medical condition in violation of the California Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. ), is at issue in this appeal. We thus limit our summary of the allegations to those underlying that claim. The first cause of action was asserted by Symmonds alone against all defendants; this appeal does not address any of the causes of action asserted by Landrum.
The FAC alleged the following: Mahoney is a "rock-and-roll" singer and songwriter "best known for the late '70s hits 'Baby Hold On' and 'Two Tickets to Paradise.' " Mahoney still "perform[s] at concerts across the country."
Mahoney hired Symmonds in 1974 as part of his band, an employment relationship that lasted "off and on for approximately 41 years." Symmonds performed as a drummer for Mahoney during live concerts and in studio, and performed "before shows with [Mahoney's] 'unplugged' band, for which he received separate compensation." He also managed and sold band merchandise, such as t-shirts, compact discs, and posters, at a booth following performances.
At some point Symmonds injured his back, which made it difficult to lift heavy boxes. He was also diagnosed with cancer, and had to wear diapers during his treatment because of urinary incontinence.
Sometime in 2015 Mahoney laid off the entire band. Months later, Mahoney rehired the band, but not Symmonds. Symmonds believed his age (he was approximately 61 years old, disabilities, and medical condition (i.e., his cancer and back surgery) were "substantial motivating reasons for his termination." Symmonds alleged that the drummer hired to replace him was younger and not disabled, but "less skilled and qualified" than Symmonds.
In the FAC's first cause of action, Symmonds alleged that Mahoney's conduct constituted unlawful discrimination under FEHA. "Specifically, [Mahoney] denied [Symmonds] reasonable accommodations, harassed [Symmonds], and wrongfully terminated [Symmonds] on the basis of his age and disability."
B. Defendants' anti-SLAPP motion
On June 29, 2016, defendants filed a special motion to strike Symmonds' first cause of action under section 425.16. Defendants argued that under the First Amendment to the United States Constitution, Mahoney had the right to select whomever he wished to perform music with him, and Symmonds' first cause of action implicated that right. Defendants argued that Symmonds' claim arose in connection with an issue of public interest given the media's and the public's interest in Mahoney and his music. In support, Mahoney submitted a declaration stating that he had written and performed several hit songs, sold millions of records, had more than 300,000 followers on Facebook, and had appeared in a television commercial referencing one of his songs in 2012. Defendants also submitted news articles dated between 2003 and 2016 concerning Mahoney and his music.
Defendants further argued that Symmonds would be unable to produce evidence demonstrating a probability of prevailing on the merits. Defendants asserted that Mahoney's decision to lay off the band was motivated by his desire to perform with his adult children during the summer of 2015. Defendants claimed that Symmonds reacted negatively to that decision by attempting to discredit Mahoney with fans and concert promoters, and Mahoney accordingly chose not to rehire him.
Defendants disputed the allegations of age discrimination, arguing that Mahoney was older than Symmonds and that the band members he rehired
Symmonds opposed defendants' motion, arguing that his first cause of action "ar[ose] from a discriminatory animus towards
Defendants filed a reply along with a list of 72 objections to Symmonds' declaration in support of his opposition.
C. The trial court's ruling
The trial court denied defendants' motion in a written order. The trial court listed the allegations from the FAC pertaining to age and disability discrimination, specifically Mahoney's jokes about "Depends" and "Chemo the Drummer," Mahoney's failure to engage in an interactive process to reasonably accommodate Symmonds' disability, and Mahoney's decision to fire Symmonds. In light of these allegations, the trial court found that Symmonds' first cause of action was "based on [Mahoney's] alleged conduct leading up to the alleged firing of Symmonds, not [Mahoney's] purported decision regarding who plays music in his band."
While acknowledging that the first cause of action included allegations pertaining to adverse employment actions such as the termination, the trial court found that the cause of action was "not based on this overarching allegation, but ... is based upon numerous detailed allegations regarding [Mahoney's] conduct in the years and months preceding his decision to choose other musicians over Symmonds." The trial court cited Wilson v. Cable News Network, Inc. (2016)
The trial court, again quoting Wilson , concluded that "[w]hile it is arguable ... that an employer's choice of who is selected to work on a particular
Having concluded that Symmonds' first cause of action did not implicate conduct protected under section 425.16, the trial court did not reach the question of Symmonds' probability of prevailing on the merits and did not address defendants' objections to Symmonds' declaration.
Defendants timely appealed.
DISCUSSION
Under the anti-SLAPP statute, "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." ( § 425.16, subd. (b)(1).) The statute protects written and oral statements in various contexts, as well as "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public
"Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16." ( Baral v. Schnitt (2016)
"If the defendant makes the required showing [at the first step], the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." ( Baral , supra ,
An anti-SLAPP motion need not be directed at a cause of action in its entirety, but "may be used to attack parts of a count as pleaded." ( Baral , supra ,
We review the grant or denial of an anti-SLAPP motion de novo. ( Park v. Board of Trustees of California State University (2017)
A. Untimeliness
Symmonds argues that defendants' special motion to strike was untimely. We reject this argument.
Section 425.16, subdivision (f) states that "[t]he special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." " 'An amended complaint reopens the time to file an anti-SLAPP motion without court permission only if the amended complaint pleads new causes of action that could not have been the target of a prior anti-SLAPP motion, or adds new allegations that make previously pleaded causes of action subject to an anti-SLAPP motion.' " ( Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018)
The original complaint in this action was filed on October 19, 2015, and included causes of action for age and disability discrimination and wrongful termination, similar
The record does not indicate that Symmonds challenged the timeliness of the motion in the trial court, and the trial court did not expressly address the
B. The trial court erred by denying defendants' special motion to strike at the first step of anti-SLAPP analysis
Again, to prevail at the first step of anti-SLAPP analysis, "the defendant must establish that the challenged claim arises from activity protected by section 425.16." ( Baral , supra ,
Defendants argue that the activity underlying the first cause of action was Mahoney's decision to terminate Symmonds, a decision Mahoney contends was in furtherance of his free speech rights in connection with an issue of public interest. The trial court found, and Symmonds argues on appeal, that the activity underlying the cause of action was Mahoney's discriminatory conduct, not the termination itself, and that conduct was not in furtherance of Mahoney's free speech rights.
For the reasons that follow, we agree with defendants. We begin with the second question, and explain why Mahoney's decision to terminate Symmonds was protected activity. We then explain why we conclude that Symmonds' first cause of action arose from that protected activity.
1. Mahoney's decision to terminate Symmonds as drummer was protected conduct under the anti-SLAPP statute
a. Mahoney's selection of musicians to perform with him was an act in furtherance of the exercise of the right of free speech
"Music, as a form of expression and communication, is protected under the First Amendment." (
Our conclusion is supported by Hunter v. CBS Broadcasting Inc. (2013)
Here, selection of a drummer is analogous to a "casting decision[ ]" regarding who is to perform music during a concert or studio performance, and thus is "an act in furtherance of the exercise of free speech." ( Hunter , supra ,
Symmonds cites cases, including Wilson , that criticized Hunter for ignoring the employer's allegedly discriminatory motive when assessing whether the employer's conduct was protected activity. (See Nam v. Regents of University of California (2016)
In Nam , a hospital terminated a medical resident following an investigation and disciplinary proceedings. ( Nam , supra , 1 Cal.App.5th at pp. 1181-1184,
We respectfully suggest that Nam and Wilson are in tension with our Supreme Court's decision in Navellier v. Sletten (2002)
The Navellier majority rejected this argument. "That the Legislature expressed a concern in the [anti-SLAPP] statute's preamble with lawsuits that chill the valid exercise of First Amendment rights does not mean that a court may read a separate proof-of-validity requirement into the operative sections of the statute. [Citations.] Rather, any 'claimed illegitimacy of the defendant's acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff 's [secondary] burden to provide a prima facie showing of the merits of the plaintiff 's case.' " ( Navellier , supra ,
Hunter relied on Navellier to reject the plaintiff 's argument that his claim was based on the defendant's discriminatory criteria in selecting weather anchors, not the selection decision itself. ( Hunter , supra , 221 Cal.App.4th at pp. 1521-1522,
We agree with Hunter 's reasoning in light of Navellier . To the extent that Nam and Wilson suggest that a defendant's discriminatory motive negates protections that otherwise would apply to the defendant's conduct under section 425.16, those decisions assessed the " 'claimed illegitimacy of the defendant's acts' " at the first stage of anti-SLAPP analysis, in contravention of Navellier . ( Navellier , supra ,
We agree with defendants that Mahoney's selection of a drummer was conduct "in connection with ... an issue of public interest." ( § 425.16, subd. (e)(4).) Courts have defined "an issue of public interest" broadly as " 'any issue in which the public is interested.' " ( Tamkin , supra ,
Tamkin concluded that "the creation and broadcasting" of a television show was "an issue of public interest" as demonstrated "by the posting of the casting synopses [for the episode] on various Web sites and the ratings for the episode" ( Tamkin , supra , 193 Cal.App4th at p. 143,
Here, defendants have made a prima facie showing sufficient to establish that Mahoney's music and concerts were of interest to the public. Mahoney's declaration put forth evidence that he had sold millions of records and had hundreds of thousands of people following him on social media. Defendants also submitted news articles from different media outlets dated as recently as 2016 discussing Mahoney and his music, including the concert tour in which Mahoney performed with his children and from which he excluded Symmonds.
In sum, we conclude that Mahoney's decision to terminate Symmonds and replace him with another drummer constituted protected conduct for purposes of the first step of anti-SLAPP analysis.
Symmonds notes that he was not only Mahoney's drummer, but also worked for him as merchandise manager and a pre-show performer. Symmonds contends that "[i]n no way would these other jobs be considered 'protected speech.' " Symmonds' loss of those additional positions, however, stemmed
2. Symmonds' first cause of action arose from Mahoney's decision to terminate him
We further conclude that Symmonds' first cause of action arose from Mahoney's decision to terminate him. "A claim arises from protected activity when that activity underlies or forms the basis for the claim." ( Park , supra ,
Symmonds' employment discrimination claim required him to prove the following elements: " '(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.' " ( Park , supra , 2 Cal.5th at pp. 1067-1068,
The trial court, relying on Wilson , reached the opposite conclusion, finding that Symmonds' claim was not based on the termination, but on Mahoney's allegedly discriminatory conduct preceding the termination. Wilson 's reasoning, however, conflicts with the Supreme Court's later decision in Park . Wilson held that "the
The Wilson majority was correct that the plaintiff news producer's cause of action depended on his allegations of discrimination and could not stand in their absence. A plaintiff asserting employment discrimination, however, must also allege an adverse employment action. ( Park , supra , 2 Cal.5th at pp. 1067-1068,
In defense of the trial court's ruling, Symmonds also cites Bonni v. St. Joseph Health System (2017)
In so concluding we do not suggest that employment decisions as a general matter are acts in furtherance of the right to petition or free speech for anti-SLAPP purposes. For example, in Park , the Supreme Court first rejected the argument that a university's tenure decision was protected because the process that led to it was communicative. ( Park , supra , 2 Cal.5th at pp. 1068-1070,
Here, as we have explained, Mahoney's decision to terminate Symmonds or, put another way, not to have Symmonds perform music with him, did implicate Mahoney's free speech rights. Thus, this case, unlike Park , presents a circumstance in which the adverse employment action itself is conduct within the purview of the anti-SLAPP statute. (See Rall v. Tribune 365 LLC (Jan. 17, 2019, B284566)
As Justice Chin stated in his concurrence in Lyle v. Warner Brothers Television Productions (2006)
C. On remand, the trial court should determine whether Symmonds has demonstrated a probability of prevailing on the merits of his claim
As for the second step of the anti-SLAPP analysis, defendants argue that Symmonds cannot show a probability of prevailing on the merits of his claim because Symmonds has failed to put forth admissible evidence establishing
Because the trial court denied defendants' anti-SLAPP motion at the first step of the analysis, it did not address whether Symmonds met his burden under the second step, nor did it rule on defendants' objections or the admissibility of the parties' evidence. Under similar circumstances, the court in Hunter held "the more prudent course is to remand the matter to the trial court" to conduct the second step analysis in the first instance. ( Hunter , supra ,
D. Defendants do not challenge the trial court's findings as to the other allegations of misconduct underlying the first cause of action
As the trial court correctly noted, and Symmonds reiterates on appeal, Symmonds'
Given the absence of any argument from defendants that the allegations of harassment and failure to accommodate a disability implicate protected activity, on remand the trial court should disregard those allegations when conducting its anti-SLAPP analysis, except insofar as they may be pertinent to assessing the probability of Symmonds' prevailing on his claim that Mahoney terminated him for unlawfully discriminatory reasons. (See Baral , supra ,
E. Symmonds' request for sanctions is procedurally defective and lacks merit
Symmonds requests that we "make an affirmative determination" that defendants' special motion to strike "was frivolous or undertaken solely to cause unnecessary delay," thus entitling Symmonds to costs and reasonable attorney fees under section 425.16, subdivision (c)(1). Symmonds cites no authority for the proposition that an appellate court may make that determination in the first instance. The trial court may make such a determination, if appropriate, upon remand.
Symmonds also requests that we impose sanctions on defendants for filing their appeal, which he asserts was "frivolous" and "solely for the purpose of causing delay." Symmonds' request is procedurally improper. Under California Rules of Court, rule 8.276(b)(1), a request for sanctions on appeal must be raised in a separate motion; "[s]anctions cannot be sought in the respondent's brief." ( Cowan v. Krayzman (2011)
DISPOSITION
The trial court's order denying defendants' special motion to strike is reversed. The matter is remanded to the trial court for further proceedings consistent with
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
Notes
The operative pleading in this case alleged that Eddie Money Entertainment, Inc. is wholly owned and controlled by Mahoney and "exists as [Mahoney's] mere alter ego."
Undesignated statutory citations are to the Code of Civil Procedure.
The FAC did not allege the dates of the back injury or cancer diagnosis. The original complaint filed in this action, however, alleged that Symmonds received his cancer diagnosis in April 2013, and underwent surgery for his back in January 2014.
A party's request is not a prerequisite to a trial court's exercise of its discretion to hear an otherwise untimely anti-SLAPP motion. (§ 425.16, subd. (f) ; Chitsazzadeh v. Kramer & Kaslow (2011)
The Supreme Court's later decision in Park clarified that the fact that a termination results from an official proceeding (in that case a tenure review of a university professor) does not make the termination itself a protected act under section 425.16. (Park , supra , 2 Cal.5th at pp. 1068-1070,
The producer claimed that his wife was disabled on the basis of infertility. (Wilson , supra ,
The Supreme Court deferred further action in Daniel pending resolution of the Wilson appeal. (See 7/12/2017 docket entry, S240704.)
The Court in Park declined to express an opinion as to whether Hunter was correctly decided, concluding only that the university had failed to present an argument analogous to that accepted by the court in Hunter . (Park , supra ,