California appeals court rules that musician’s decision to fire his drummer is activity protected under California’s anti-SLAPP statute because singer’s selection of musicians that play with him both advances and assists in performance of music, and therefore is act in furtherance of his exercise of right of free speech.
Singer and songwriter Eddie Money (whose given name is Edward Joseph Mahoney) terminated the employment of his drummer, Glenn Symmonds, in 2015. Symmonds had performed continuously with Mahoney for approximately 41 years. Symmonds subsequently sued Mahoney and Eddie Money Entertainment Inc. for discrimination based on age, disability and medical condition in violation of the California Fair Employment and Housing Act (FEHA), among other causes of action. Specifically, Symmonds alleged that Mahoney denied him reasonable accommodations, harassed him and wrongfully terminated him on the basis of his age and disability. Defendants filed a motion under California Code of Civil Procedure Section 425.16, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, to strike Symmonds’ cause of action for unlawful discrimination, arguing that Mahoney’s decision regarding which musicians perform with him was protected under Section 425.16 as an act in furtherance of the exercise of his constitutional right of free speech in connection with an issue of public interest.
The trial court denied defendants’ motion, finding that Symmonds’ discrimination cause of action did not implicate Mahoney’s free speech rights because it arose from defendants’ discriminatory conduct ― i.e. , Mahoney’s “alleged conduct leading up to the alleged firing of Symmonds” ― rather than from conduct protected under Section 425.16 ― e.g., Mahoney’s “purported decision regarding who plays music in his band.”
Reviewing the merits of defendants’ anti-SLAPP motion de novo, the appeals court explained that resolution of an anti-SLAPP motion involves two steps. First, a defendant must demonstrate that the challenged claim arises from activity protected by Section 425.16. If defendant makes this showing, the burden shifts to plaintiff to demonstrate the merit of the claim by establishing a probability of success.
The appeals court concluded that the trial court had erred in denying defendants’ motion at the first step of anti-SLAPP analysis. The court explained that this first step of anti-SLAPP analysis required it to determine (1) the activity from which plaintiffs’ discrimination cause of action arose and (2) whether that activity was protected by Section 425.16.
The appeals court answered the second part of the inquiry ― whether the activity from which Symmonds’ discrimination cause of action arose was protected ― in the affirmative. First, the appeals court concluded that “[a] singer’s selection of the musicians that play with him both advances and assists the performance of the music, and therefore is an act in furtherance of his exercise of the right of free speech.” Citing as precedent a decision which found that a casting decision qualifies as an act in furtherance of the right of free speech, the appeals court reasoned that Mahoney’s selection of a drummer is analogous to such a casting decision and similarly qualified for Section 425.16 protection. The appeals court also affirmed that Mahoney’s selection of a drummer was conduct “in connection with . . . an issue of public interest” because defendants had made a showing sufficient to establish, through evidence including Mahoney’s sale of millions of records and his robust social media following, that Mahoney’s music and concerts were of interest to the public.
The appeals court also noted that the trial court erred in considering the alleged wrongfulness of defendants’ conduct in determining whether the activity from which Symmonds’ discrimination cause of action arose was protected. Rather, the appeals court opined, such a determination was an issue for the second step of anti-SLAPP analysis.
Next, the appeals court affirmed that Symmonds’ discrimination cause of action arose from Mahoney’s decision to terminate Symmonds’ employment and select a new drummer, satisfying the first part of the first step of anti-SLAPP analysis, and the court further found that the protected act of termination, rather than the alleged prior discriminatory conduct, was the basis for plaintiff’s cause of action. The court clarified that, as a general matter, employment decisions are not necessarily acts in furtherance of the right to petition or free speech for anti-SLAPP purposes. Here, however, Mahoney’s decision to terminate Symmonds “present[ed] a circumstances in which the adverse employment action itself is conduct within the purview of the anti-SLAPP statute.”
After reversing the trial court’s determination on the first step of anti-SLAPP analysis, the appeals court determined that “the more prudent course” regarding the second step of anti-SLAPP analysis was to remand such a determination to the trial court, since the trial court had not yet made an initial determination on this step of the analysis. The appeals court also instructed the trial court that, on remand of defendants’ anti-SLAPP motion, the trial court should disregard Symmonds’ allegations regarding harassment and failure to accommodate a disability, since defendants’ anti-SLAPP motion was directed only at Symmonds’ termination.
Summary prepared by Jonathan Zavin and Sara Slavin