The California Supreme Court clarified the outer limits of the anti-SLAPP statute in terms of when an action meets the “arising from” prong. In Park v. Board of Trustees of California State Univ. (2017) 2 Cal. 5th 1057, the university denied tenure to a professor based on alleged national-origin discrimination. The university argued the resulting claim triggered anti-SLAPP protection because it relied on the official grievance proceeding, and statements or evaluations made as part of the tenure process. The Supreme Court rejected this argument, following a trio of recent decisions holding that discriminatory actions do not meet the “arising from” prong simply because the discriminatory animus might have been evidenced by one or more communications by a defendant. The elements of the claim rested on denial of tenure itself and whether the motive for that action was impermissible.

Park was recently followed in Mission Bev. Co. v. Pabst Brewing Co., LLC, 2017 Cal. App. LEXIS 827 (2nd Dist. 9/25/17). In this case, Mission filed a breach of contract and declaratory relief action challenging Pabst’s decision to terminate a Distributor Agreement. Relying on Park, the Court held that Mission’s claims were based on Pabst’s decision to terminate the Agreement—not Pabst’s subsequent letter communicating that decision. The termination decision precedes and is unconnected with any official proceeding. Mission argued that Pabst’s letter commencing arbitration triggered the statute. That letter did not qualify as protected activity: “Although mandatory arbitration undoubtedly qualifies as an official proceeding under the governing precedent, Pabst’s letter is not preparatory to such an arbitration. That is because the statute first contemplates that the parties negotiate in good faith and resort to arbitration only if negotiations fail. (BP&C § 25000.2, subd. (f).) Like the insured who files a claim not knowing whether the insurer will pay the claim or fight the claim in litigation, Pabst had ‘no reason to believe’ that arbitration ‘will follow’ from its letter because [the parties] could well have negotiated a settlement and obviated any need for arbitration. For these reasons, the anti-SLAPP statute does not apply.”

Park and Mission Beverage illustrate an important principle limiting application of the anti-SLAPP statute: to satisfy the first prong of the anti-SLAPP statute, the challenged action or decision itself must be protected activity or directly arise from such activity. Without this showing, the anti-SLAPP motion will be denied.