Chang believed Cho filed his cross-claim in retaliation for her own. She filed a motion to strike Cho's cross-claim as a "SLAPP" or Strategic Lawsuit Against Public Participation.
Cho in part claimed that Chang's discrimination charges filed at the EEOC/DFEH were defamatory. But Cho also based his cross-claim for defamation in part on statements Chang made to co-workers and a written report she submitted accusing Cho of harassment. So, the court had different types of conduct to sort through.
Each of the two causes of action in Cho's cross-complaint, defamation and intentional infliction of emotional distress, is based on three separate and discrete alleged activities by Chang: (1) Chang‟s discrimination claim filed with the EEOC and DFEH; (2) her written report to Midway management; and (3) her verbal comments to co-workers regarding the November and December incidents.
Cho argued that Chang's statements to other employees about his alleged harassment were not "protected" by either the litigation privilege or the anti-SLAPP provisions. Therefore, Chang could be sued for slander. The trial court agreed with Cho, as did the Court of Appeal.
So, this means that if Chang had demonstrated a closer connection between her formal complaints and her discussions with co-workers, the communications might have been protected. Because she did not do so, Cho's cross-claim against her could proceed. Therefore, if this case stands, individual defendants in some cases may get away with cross-claims against plaintiffs who accuse them of sexual harassment. This does not mean individuals should do so. There is a risk that they will be viewed as vengeful or motivated to deny bad conduct to win the cross-claim.
Chang submitted no evidence that her comments to Lee or to other co-workers were made to seek the assistance of any other person as a witness or as a person with an interest in the action. While Chang argues such a rationale, and presumably could have offered evidence to support it, she offered none. Absent such a showing, we agree with the trial court's finding that Chang‟s comments to co-workers were not “in connection with” the issues in her subsequent lawsuit against Cho and, therefore, are not protected activity pursuant to section 425.16.
The trial court and the Court of Appeal had little trouble finding that the administrative charges themselves were covered by the anti-SLAPP statute, as was the letter that Chang wrote to management to complain about sexual harassment.
The internal complaint was covered because as the court put it: "Where the protected activity is a complaint to management or a government agency, or a lawsuit concerning workplace sexual harassment, it must have a demonstrated nexus with that activity, such as an effort to find witnesses to the same or similar conduct."
So the Court of Appeal decided the anti-SLAPP law barred part of Cho's claims for defamation and IIED. Did that mean the entire cause of action should be struck? No. The Court decided that the trial court may stike portions of a claim, and is not required to let the whole case continue.
Then the Court turned to Chang's request for attorneys' fees, since she prevailed on her motion. Although the winner of an anti-SLAPP motion is entitled to fees, the trial court denied Chang's claim for them, because she had not "accomplished" enough by striking part of Cho's cross-complaint. The Court of Appeal allowed this ruling to stand.
This ruling encourages anti-SLAPP motions directed to portions of a cause of action, but then creates a disincentive by denying attorney's fees. We will see if the parties attempt California Supreme Court review.
This decision is Cho v. Chang and the opinion is here.
