In Cho v. Chang, No. B239719, published September 6, 2013 (Cho), the Court of Appeal held that claims for defamation and intentional infliction of emotional distress are properly stricken pursuant to Code of Civil Procedure section 425.16 (California’s anti-SLAPP statute) where the allegations involve protected activity.
In Cho, the plaintiff (Chang) sued her employer and a co-worker (Cho) for sexual harassment, unlawful retaliation, and sexual discrimination under the Fair Employment and Housing Act. Cho brought a cross-complaint against Chang for defamation and intentional infliction of emotional distress. In support of her anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike Cho’s cross-complaint, Chang alleged that statements made to other co-workers regarding the alleged harassment were protected activity. In opposition, Cho submitted declarations indicating Chang made statements to co-workers outside of her formal complaints to company management, the Department of Fair Employment and Housing, and the Equal Employment Opportunity Commission.
The trial court concluded the anti-SLAPP motion, which protects against lawsuits brought to chill the exercise of free speech and right to petition for the redress of grievances, should be granted as to statements made to Chang’s employer and public agencies, or that have a demonstrated connection to the employee’s protected activity (i.e., such as an effort to find witnesses to same or similar unlawful conduct). However, the court denied the motion as to those allegations in the cross-complaint pertaining to Chang’s statements to co-workers that were not demonstrably related to her formal complaints. The Court of Appeal affirmed the trial court’s decision, concluding that Cho could proceed on his theories that did not involve protected activity. The court further concluded that it was not an abuse of discretion to deny Chang statutory attorney fees, reasoning that the partial success of the anti-SLAPP motion had achieved nothing of practical consequence since Cho could proceed on both of his causes of action in the cross-complaint.
Cho confirms the protected nature of an employee’s right to report unlawful conduct to his or her employer and public agencies. Nevertheless, it also confirms there are substantive limits to these protections and they do not confer a right upon an aggrieved employee to engage in tortious conduct.
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