This article was first published by Law360 in February 2018 and is reprinted with permission.
In Gaynor v. Bulen,1 California’s Court of Appeal recently articulated the proper approach for determining whether allegations constitute protected activity under the anti-SLAPP statute,2 a standard most recently clarified by the California Supreme Court in Baral v. Schnitt (“Baral“),3 and Park v. Board of Trustees of California State University (“Park“).4 The appellate court did so in Gaynor addressing a breach of fiduciary duty claim asserted by trust beneficiaries against an alleged “de facto trustee.” Gaynor, viewed together with other recent decisions in a variety of contexts, confirms that the first prong standards articulated in Baral and Park seem to have provided much improved guidance for trial courts deciding anti-SLAPP motions.
The plaintiff beneficiaries in Gaynor had filed a probate court petition, asserting a breach of fiduciary duty claim against three trustees and their advisor, all of whom allegedly acted to benefit themselves at the expense of the trust’s junior beneficiaries. The alleged wrongful acts included unfairly distributing trust funds and pursuing a plan to modify the trustee succession provisions to ensure their continued control over distributions. The beneficiaries specifically alleged that the trustees wrongfully withdrew and used trust assets to file and defend petitions seeking probate court approval of their self-serving succession plan. All of the asserted breaches were alleged to have been accomplished with the help of the advisor, acting as a “de facto trustee.”
The advisor filed an anti-SLAPP motion, which was briefed and decided in the trial court before Baral issued. The advisor argued that the “gravamen” of the claim against him arose from his protected activity in participating in the probate litigation.5 The beneficiaries opposed the motion by arguing that the anti-SLAPP statute did not apply, because the “principal thrust” of their petition was aimed at breaches of duty of loyalty that took place well before the defendants ever “stepped into the courtroom.”6
The trial court denied the anti-SLAPP motion, based in part on a “primary right” analysis,7 a theory the Supreme Court in Baral found to be “notoriously uncertain in application” and “ill-suited to the anti-SLAPP context.8
In affirming the denial of the anti-SLAPP motion, the Court of Appeal’s de novo review relied heavily on the first prong approach articulated in Baral and Park. Under Baral: “[T]he moving party must show (1) the complaint alleges protected speech or conduct, and (2) the ‘relief is sought based on allegations arising from‘ the protected activity.”9 As instructed in Park, the appellate court specifically considered “whether the protected activity was the alleged injury-producing act that formed the basis for the claim.”10 It concluded that the advisor’s alleged conduct in wasting trust assets in litigation was not a separate legal claim, but merely reflected the manner in which he and the trustees sought to implement the alleged wrongful trustee succession plan.11 Drawing still further on Park’s guidance, the appellate court also considered whether the alleged litigation activity was really the “basis for” the breach of duty claim, as opposed to being merely “evidence of the breach.”12 It concluded that, even assuming the advisor engaged in protected activity by his litigation actions, he failed to show that the alleged breach of duty arose from those activities.13
Gaynor is one of several recent cases decided in widely differing contexts that have applied the Baral and Park guidelines with admirable consistency. In Mission Beverage Company v. Pabst Brewing Company,14 for example, the appellate court relied on Park in concluding that a beer distributor’s breach of contract claim based on the brewer’s termination of its distribution rights did not arise from protected activity. Citing Park, it explained that: “[W]here a plaintiff’s claim is based upon ‘an action or decision’ of the defendant, it is not enough that some protected activity precedes that action or decision, that some protected activity is the means of communicating that action or decision, or that some protected activity constitutes evidence of that action or decision.”15
In another example, the court in Shahbazian v. City of Rancho Palos Verdes affirmed the denial of the City’s anti-SLAPP motion relating to a property owner’s claims involving the City’s grant and denial of certain permits.16 The court acknowledged its obligation under Park to “consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.”17 It found that the City failed to satisfy its first prong burden under the anti-SLAPP statute, because plaintiffs’ claims did not arise from “any statements, writings, or conduct in further of the City’s rights to petition or speech.” Instead, they arose from the City’s decisions to grant or deny the permits at issue, decisions which were not themselves protected activity.18
In yet another example, (albeit one in which review has been granted), the appellate court in Bonni v. St. Joseph Health System19 relied on Park’s guidelines in concluding that a defendant’s liability under the whistleblower statute did not arise from statements made during a protected peer review proceeding involving plaintiff. Instead, liability was “based on” defendant’s alleged retaliatory motive in subjecting plaintiff to the peer review proceeding: “The Park court made clear that . . . it is not sufficient merely to determine whether plaintiff has alleged activity protected by the statute. The alleged protected activity must also form the basis for plaintiff’s claim.”20 Further following Park’s advice, the Bonni court looked to the elements of the challenged whistleblower claim. It determined that the defendant’s liability under plaintiff’s claim was based on defendant’s discriminatory or retaliatory purpose or motive, not on any actions of the defendant (even including speech or petitioning activity) by which defendant carried out its retaliatory purpose.21
Baral and Park did not explicitly disapprove the lower courts’ historical reliance on the fuzzier and more malleable “gravamen,” “principal thrust” and “primary right” standards for determining whether a claim arises from “protected activity” under Section 425.16. Nonetheless, the recent cases discussed above, among others, show that the approaches set forth in Baral and Park provide — if not a bright line test for evaluating the first prong of the statute — at least a more workable approach of value to both litigants and courts.
Susan Allison is a partner and trial lawyer at Jeffer Mangels Butler & Mitchell LLP in Los Angeles. She handles complex litigation matters including anti-SLAPP motions and appeals, intellectual property and entertainment litigation, defendants’ professional malpractice, class action defense, and healthcare litigation. Contact Susan at SAllison@jmbm.com.
- 2018 WL 505345 (Cal.App.4 Dist. January 23, 2018).
- Cal. Civ. Proc. Code § 425.16.
- 1 Cal.5th 376 (2016). In Baral, after disapproving the then-prevailing “Mann rule” for addressing anti-SLAPP motions where a plaintiff’s claims involving allegations of both protected and unprotected activity, the Supreme Court provided a “brief summary” of the proper first and second step approach that litigants and courts should follow in anti-SLAPP motions.
- 2 Cal.5th 1057 (2017).
- 2018 WL 505345 at *6.
- Id. at *7.
- 1 Cal.5th at 394-395.
- Id., quoting Baral, 1 Cal.5th at 396 (emphasis in original).
- Id. at *8, citing Park, 2 Cal.5th R 1062-1063.
- Id. at *9.
- Id. at *13.
- 15 Cal.App.5th 686 (2017).
- Id. at 701 (emphasis in original)
- 17 Cal.App.5th 823 (2017)
- Id. at 831 (emphasis added).
- Id. at 835.
- 13 Cal.App.5th 851 (2017) (Sup. Ct. review granted 11/1/2017).
- Id. at 861 (emphasis added).