In Cho v. Chang, the California Court of Appeal, Second Appellate District held that an employee’s statements to coworkers about alleged discrimination were not protected activities triggering special protection under California’s anti-SLAPP statute.
The court further held that an anti-SLAPP motion can be granted as to protected activities and denied as to unprotected activities combined within the same cause of action.
Enacted in 1992, California’s anti-SLAPP statute provides for a special motion to strike a complaint “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
Chang sued her former employer, Midway International Inc. (“Midway”), and a former coworker, Howard Cho, alleging claims of sexual harassment, unlawful retaliation and sexual discrimination under the Fair Employment and Housing Act (FEHA). Chang alleged that Cho repeatedly groped her at two company holiday events, and that he was verbally abusive to her at work in the months that followed.
Cho filed a cross-complaint alleging that Chang’s accusations were libelous, exposing him “to hatred, contempt and obloquy.” Cho alleged causes of action for defamation and intentional infliction of emotional distress based on (1) Chang’s written report to Midway, (2) claims she filed with state and federal governmental agencies, and (3) oral statements to co-workers. Chang responded with a special motion to strike the cross-complaint as a SLAPP suit.
The trial court granted Chang’s motion with respect to her report to Midway and claims to government agencies, holding that those communications were protected activities under the statute. The court, however, denied the motion as to Chang’s statements to coworkers on the ground that those communications were not protected. Chang appealed the ruling.
Affirming the trial court decision, the court noted that not every statement made in connection with an alleged wrong is protected activity. For anti-SLAPP protections to apply, the communications
must have a demonstrated nexus with that activity, such as an effort to find witnesses to the same or similar conduct.”
Here, the court held, Chang made no showing that her statements to coworkers were made for those purposes. Moreover, Chang failed to show that her comments furthered her constitutional rights in connection with a public issue – a category of protected speech identified in the statute.
Lastly, the court approved of the trial court’s application of the anti-SLAPP statute to a mixed cause of action, i.e. one challenging both protected and unprotected activities.
It would make little sense if the anti-SLAPP law could be defeated by a pleading, such as the one in this case, in which several claims are combined in a single cause of action, some alleging protected activity and some not. Striking the entire cause of action would be inconsistent with the purposes of the statute.”