California Legal Brief

The Rule of Pechkis v. Trustees of the California State University is that an anti-SLAPP motion to strike entire causes of action fails when the defendant does not identify with specificity how each claim underlying the causes of action arises from protected activity, under circumstances where the causes of action contain both protected and unprotected conduct.

Appeal from judgment after denial of anti-SLAPP motion in Superior Court, Butte County.

Defendant Appellant was Trustees of the California State University — the public university system that employed the plaintiff professors and conducted the alleged retaliatory investigation.

Plaintiff Respondents were Hyewon Pechkis and Joseph Pechkis — tenured physics professors at CSU Chico who reported discrimination and harassment by their department chair.

The suit sounded in employment retaliation and whistleblower protection. The key causes of action challenged were retaliation under the California Fair Employment and Housing Act and whistleblower retaliation.

The key substantive facts leading to the suit were plaintiffs reported discrimination and harassment by their department chair based on gender and Korean ancestry, Chico State failed to address the behavior, plaintiffs accepted employment at Cal Poly, Chico State then initiated a "sham investigation" against Hyewon for alleged Privacy Act violations and contacted Cal Poly about the investigation, and plaintiffs were constructively discharged from their tenured positions.

The procedural result leading to the Appeal: The trial court denied defendant's anti-SLAPP motion to strike the second and sixth causes of action, ruling that while the challenged causes of action arose from protected activity (administrative investigation), plaintiffs demonstrated a likelihood of success on the merits.

The key question(s) on Appeal: Whether causes of action for retaliation must be stricken under the anti-SLAPP statute when they are based "in part" on protected communications, but also contain allegations of unprotected conduct such as constructive discharge and initiation of retaliatory investigations.

The Appellate Court held that defendant failed to carry its first-step burden under the anti-SLAPP analysis because being based on protected speech "in part" is insufficient - the defendant must identify with specificity what acts each challenged claim rests on and show how those acts are protected, and cannot challenge entire causes of action without analyzing each underlying claim for relief.

The case is inapplicable when defendants properly perform the required elemental analysis by identifying specific claims within causes of action, explaining the elements of each claim, the actions alleged to establish those elements, and why those specific actions constitute protected activity under the anti-SLAPP statute.

The case leaves open whether individual allegations within the retaliation causes of action might constitute protected conduct susceptible to a more targeted anti-SLAPP motion, and the scope of anti-SLAPP protection for various investigatory acts beyond communications.