Nam v. Regents of the Univ. of Cal. — July 2016 (Summary)

SLAPP

Nam v. Regents of the Univ. of Cal.
No. C074796 (Cal. Ct. App. July 29, 2016)

The Court of Appeal of California affirmed the trial court’s decision to deny defendant educational institution’s special motion to strike based on the anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute, holding that the plaintiff resident’s claims for sexual harassment and retaliation were not protected First Amendment activities under the statute.

After a resident drafted an email expressing concerns about patient care and refused the alleged sexual advances of the residency program director, she received complaints and warnings, was investigated, and ultimately given written notice of termination.  The resident filed a complaint against the educational institution for, among other things, sexual harassment and retaliation.  The institution moved to strike the resident’s complaint, alleging that it constituted a SLAPP because the resident’s complaint arose out of complaints based on the institution’s protected activity as part of an official proceeding.  The resident argued that her complaint did not arise out of the formal documentation of complaints and the formal documentation of her termination, but out of her voicing concern for patient safety, being sexually harassed, and being retaliated against when she publicly expressed her concerns for patient care, and refused the physician’s alleged advances.

The court rejected the educational institution’s argument.  The court stated that accepting the institution’s argument would subject most harassment and retaliation claims to an anti-SLAPP motion to strike, since the institution could use protected activities such as compiling complaints, conducting investigations, and giving written notice of suspension or termination as means to discriminate or retaliate.  The court also stated that the resident alleged the wrongdoings of sexual harassment and retaliation, and such conduct is not a protected activity.  Thus, since the alleged wrongdoings are not protected activities, the institution could not succeed on a motion to strike based on the anti-SLAPP statute.  The court further noted the questionable nature of characterizing the resident’s claim as a SLAPP because it is unlikely that the resident’s suit would be able to stifle the institution from conducting protected activities, as is the motivation for a SLAPP.