Moving Party: Real Party in Interest The Center for Scientific Integrity

Responding Party: Petitioner Constance Iloh

RULING:

Real Party in Interest The Center for Scientific Integrity’s (“CSI”) Special Motion to Strike Complaint Under CCP 425.16 (Anti-SLAPP) is DENIED.

STANDARD OF LAW

“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.” (CCP § 425.16(b)(1).) An “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: . . . any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or . . . 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 interest. (CCP § 425.16(e).)

“Section 425.16 posits [] a two-step process for determining whether an action is a SLAPP.” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88.) “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” (Id.) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e).” (Id.) “If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Id.)

“[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘stated and substantiated a legally sufficient claim.’” (Navallier, 29 Cal. 4th at 88.) “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” (Id. at 88-89.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” (Id.)

AMENDED PETITION

In this action, Petitioner Constance Iloh (“Petitioner”) filed an Amended Petition seeking adjudication of the issue of how the California Public Records Act (“CPRA”) should be applied when it comes to disclosure of correspondence in university emails used by professors/academics employed by public institutions. On September 9, 2020, CSI made a public records request to Respondent Regents of the University of California (“Respondent”), seeking correspondence relating to four articles authored by Petitioner.

Petitioner, an assistant professor at UCI, argues that such correspondence should not be subject to a public records request because the correspondences do not relate to conduct of the public’s benefit, Petitioner has a reasonable expectation of privacy, and the balance of interests favors nondisclosure to preserve academic freedom. Petitioner points to the exception in CPRA for personnel files, “the disclosure of which would constitute an unwarranted invasion of privacy,” under Cal. Gov’t Code § 6254(c), and asserts that disclosure is not required where “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record,” under Cal. Gov’t Code § 6255. Petitioner argues that her private correspondence does not relate to the “conduct of the public’s business” pursuant to Cal. Gov’t Code § 6252(e) to constitute a public record. Specifically, she contends that the four articles at issue were not published by the public institution employing Petitioner, but rather private academic journals, and were not related to the discharge of Petitioner’s employment at UCI.

SPECIAL MOTION TO STRIKE

“Only a cause of action that both arises from protected speech or petitioning and lacks even minimal merit is a SLAPP subject to the special motion to strike.” (Found. for Taxpayer & Consumer Rts. v. Garamendi Garamendi (2005) 132 Cal. App. 4th 1375, 1389.)

The first step in determining whether to strike the Amended Petition is whether the Amended Petition arises from CSI’s protected activity.

“Reporting the news is speech subject to the protections of the First Amendment and subject to a motion brought under section 425.16, if the report concerns a public issue or an issue of public interest.” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal. App. 4th 156, 164.) “Reporting the news usually requires the assistance of newsgathering, which therefore can be construed as undertaken in furtherance of the news media’s right to free speech.” (Id. at 166.)

However, “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.” (Park v. Bd. of Trustees of California State Univ. (2017) 2 Cal. 5th 1057, 1060.) “Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Id.; Collondrez v. City of Rio Vista (2021) 61 Cal. App. 5th 1039, 1049 [“[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct.”].)

An Anti-SLAPP motion fails where the movant “fail[s] to carry its burden of proof of showing petitioners’ claim arose from [movant]’s actions in furtherance of its right of petition or free speech.” (Found. for Taxpayer & Consumer Rts. v. Garamendi Garamendi (2005) 132 Cal. App. 4th 1375, 1389.) For example, when a movant “brought its motion even though petitioners’ complaint contained no cause of action against [movant] and did not challenge [movant’s free speech activities].” (Id.)

Under certain circumstances, it may be reasonable for a real party in interest to bring an anti-SLAPP motion. (Rudisill v. California Coastal Com. (2019) 35 Cal. App. 5th 1062, 1072.) In Rudisill, “Real Parties in Interest were both identified as entities with a direct interest in the property that was the subject of the mandamus proceeding and as participants in regulatory missteps or outright wrongdoing that, if they chose to participate in the litigation, might ultimately subject them to attorney fees as ‘parties,’” then “it was reasonable for Real Parties in Interest to conclude that the Petition asserted claims against them.” (Id. at 1073 [finding that an Anti-SLAPP motion was not frivolous under the circumstances].)

Based on the circumstances of this case, while CSI fits the definition of a real party in interest, it has not shown that Petitioner has asserted claims against it or that the causes of action asserted in the Amended Petition challenge CSI’s free speech conduct of newsgathering or reporting. Here, Petitioner is seeking mandamus, an injunction and declaratory relief to restrict Respondent’s ability to respond to CSI’s record request, but the claims themselves do not arise from/are not based upon CSI’s act of making the record request. CSI’s protected activity may have led to the conduct being challenged (i.e. Respondent’s disclosure of the subject records) and may be incidental to the conduct being challenged, but is not the basis of Petitioner’s claims. Unlike in Rudisill, Petitioner does not challenge CSI’s right to make a records request and does not seek to hold CSI liable for any wrongdoing.

Accordingly, CSI has not satisfied the first step of the Anti-SLAPP analysis by showing that this Petition arises from CSI’s actions in furtherance of its free speech rights. On this ground, this Special Motion to Strike is DENIED.

As CSI has not satisfied the first step, the Court does not reach the second step of the Anti-SLAPP analysis.

REQUEST FOR ATTORNEY’S FEES AND COSTS

“A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (CCP § 128.5(a).) CSI contends that it should be awarded attorney’s fees and costs on the grounds that this allegedly frivolous Petition was filed in bad faith.

The Court finds that this Motion did not arise to the level of frivolousness and there is no evidence it was brought in bad faith. Accordingly, the Court DENIES CSI’s request for fees and costs.

Moving party CSI to give notice of this ruling.