No more “SLAPPing” Around of Whistleblowers

Employers continue to use “anti-SLAPP” motions to attack wrongful termination cases, and the Courts of Appeal continue generally to deny them access to this procedure. An anti-SLAPP motion is one that asserts that the basis of the wrongful termination case is protected constitutional speech by the employer. The motion permits the court to shift the burden of proof to the employee well before the beginning of the trial to demonstrate a probability of winning on the merits.

In the decision of Donovan v. Dan Murphy Foundation  B-230820 decided April 18, 2012, Court of Appeal reversed a trial court granting of the employer's anti-SLAPP motion. The Court of Appeal held that the “essence” of the allegations were the employee’s resistance of supposedly illegal conduct by the employer’s Board of Directors. Specifically, the employee alleged that the Board acted outside the requirements of the Probate Code in managing the Foundation's assets. The long list of disputes between Donovan and the Board of Directors looked like an internal squabble. Code of Civil Procedure Section 425.16 permits the motion to be granted to dismiss the wrongful termination suit only if the allegations interfere with a person's “right to free speech or petition” on a matter “in connection with a public issue.”

The Donovan decision is significant because it seems to tether the requirement of a “public issue” to a “official proceeding authorized by law.” The Court held that although the Board of Directors was created by the Corporations Code, and that the Board operated within the authority granted by the code, it was not acting as a “official body”. Of course, if the employer had succeeded in this novel argument, virtually any action by a Board of Directors would have become a “official proceeding.”

On the separate issue of whether there was communication that was in the “furtherance of the public interest,” the Court noted that the employer did not provide any evidence that there was widespread public interest in the actions of this particular Board of Directors. For example, it noted that the Board had not presented evidence of widely disseminated news articles.

Disturbing in this decision is not the holding of the Court of Appeal but the ruling by the trial court initially that the employer should prevail on its anti-SLAPP motion. Hopefully, with the accumulation of these Court of Appeal decisions, trial courts will be guided to grant these anti-SLAPP motions only in the most clear circumstances.

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