Iloh v. Regents of the Univ. of Cal.

94 Cal.App.5th 947

312 Cal.Rptr.3d 674

Constance ILOH, Plaintiff and Respondent,

v.REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant;

The Center for Scientific Integrity, Real Party in Interest and Appellant.

G061238

Court of Appeal, Fourth District, Division 3, California.

Filed August 24, 2023

Law Offices of Kelly Aviles, Kelly Aviles, La Verne, and Shaila Nathu for Real Party in Interest and Appellant.

Tabah Law and Elvin I. Tabah for Plaintiff and Respondent.

OPINION

GOETHALS, ACTING P. J.

This is our second opinion in this case. The Center for Scientific Integrity (CSI) is an organization that reports on academic retractions and accountability. CSI wrote an article about Constance Iloh, a professor at the University of California, Irvine (UCI), after several academic journals retracted articles Iloh had written due to concerns about possible plagiarism or inaccurate citation references. In a follow-up to that article, CSI sent UCI a records request under the California Public Records Act (CPRA) ( Gov. Code, § 7920.000 et seq. ), requesting Iloh's postpublication communications with the journals and UCI.

Iloh filed a petition for writ of mandate, declaratory relief, and injunctive relief against UCI to prevent disclosure of her communications, and later added CSI as a real party in interest. She then filed a motion for preliminary injunction to prevent disclosure. Meanwhile, CSI filed a motion to strike Iloh's petition under the anti-SLAPP (strategic lawsuit against public participation) statute ( Code Civ. Proc., § 425.16 ( § 425.16 )).

Our first opinion in this case concerned Iloh's motion for preliminary injunction. The trial court denied that motion on the grounds that Iloh had not established a likelihood of prevailing on the merits, and we affirmed that order. ( Iloh v. Regents of University of California (2023) 87 Cal.App.5th 513, 303 Cal.Rptr.3d 709 ( Iloh I ).)

We now consider CSI's anti-SLAPP motion. The trial court denied the motion, finding that although protected activity may have led to the petition, it was not the "basis" for the petition. We disagree. In issuing the CPRA request, CSI was engaging in newsgathering so it could report on matters of public interest, such as how a public university funded largely by taxpayer dollars resolves quality or integrity problems in its professors' publications. CSI was therefore engaged in protected activity when it issued the CPRA request.

Iloh filed her petition for writ of mandate to prevent UCI from complying with CSI's CPRA request. By targeting and seeking to impede CSI's newsgathering activity, Iloh's petition threatens to chill CSI's speech-related processes like newsgathering; if successful, this could inhibit CSI's exercise of free speech. This is the type of lawsuit the anti-SLAPP statute is designed to address, and it should be stricken if Iloh cannot demonstrate a probability of prevailing on her petition.

The trial court has not yet performed prong two of the anti-SLAPP analysis, which involves determining whether Iloh has established a probability of prevailing on her claims. We decline to consider that question in the first instance. Instead, we reverse the order denying CSI's anti-SLAPP motion under prong one of the anti-SLAPP statute and remand this matter with directions that the trial court consider prong two of the anti-SLAPP statute.

FACTS

As detailed in Iloh I, supra , 87 Cal.App.5th 513, 303 Cal.Rptr.3d 709, "Iloh has a Ph.D. in urban education policy. She was employed at [UCI] from 2015 to 2021, first as a postdoctoral fellow, and then as an assistant professor in UCI's school of education. ...

"During her time as a UCI professor, Iloh published research articles on education in a variety of academic journals. At issue here are four [of those] articles published in journals unaffiliated with UCI: (1) Paving effective community college pathways by recognizing the Latino post-traditional student (2018) in the Journal of Latinos and Education; (2) Not non-traditional, the new normal: adult learners and the role of student affairs in supporting older college students (2017-2018) in Colorado State University's Journal of Student Affairs; (3) Toward a new model of college "choice" for a Twenty-First-Century context (2018) in the Harvard Educational Review; and (4) Does distance education go the distance for adult learners? Evidence from a qualitative study at an American community college (2018) in the Journal of Adult and Continuing Education." ( Iloh I, supra , 87 Cal.App.5th at p. 519, 303 Cal.Rptr.3d 709.)

"After the articles were published, an anonymous source reportedly e-mailed the four journals and demanded the articles be retracted. [A]ll four articles were [then] either retracted or corrected by the journals in which they were published: the Journal of Latinos and Education retracted Iloh's article in full; the Journal of Student Affairs removed Iloh's article and the entire issue in which it was published; the Harvard Educational Review issued an errata statement; and the Journal of Adult and Continuing Education issued a correction." ( Iloh I, supra , 87 Cal.App.5th at p. 520, 303 Cal.Rptr.3d 709.) It seems the retractions were related to concerns about possible plagiarism or inaccurate citation references in Iloh's articles.¹

"The retractions caught the attention of Retraction Watch, an editorially independent organization that maintains a database of article retractions in scientific journals, covers incidents of particular note, and reports on academic publishing, transparency, and accountability. Retraction Watch is published by [CSI], a nonprofit public benefit corporation whose mission is ‘to promote transparency and integrity in science and scientific publishing, and to disseminate best practices and increase efficiency in science.’

"In August 2020, Retraction Watch published an article about Iloh's papers; the article reported the papers had been ‘retracted and corrected, for plagiarism and misuse of references.’ The following month, to further its investigation, Retraction Watch sent a CPRA records request to UCI seeking all correspondence from January 2019 onward (1) between UCI and Iloh regarding articles published in the four journals, and (2) between UCI or Iloh and the four journals regarding articles authored by Iloh.

"UCI notified Iloh of the CPRA request and its intent to disclose the responsive records. Iloh responded that the requested records fell outside the scope of the CPRA and argued the request violated her privacy rights. UCI agreed to remove a few records from its production, but maintained it would disclose the remaining records absent a court order.

"In April 2021, Iloh filed a verified petition against UCI and the Regents of the University of California (the Regents) for writ of mandate, declaratory relief, and injunctive relief to prevent disclosure." ( Iloh I, supra , 87 Cal.App.5th at pp. 520-521, 303 Cal.Rptr.3d 709.) Shortly thereafter, Iloh apparently left her position at UCI.

"In July 2021, Iloh filed an amended petition adding CSI as a real party in interest and removing UCI as a respondent. She then filed a motion for preliminary injunction enjoining the Regents from disclosing the requested records to CSI." ( Iloh I, supra , 87 Cal.App.5th at p. 521, 303 Cal.Rptr.3d 709.) "The trial court denied Iloh's motion for preliminary injunction, finding Iloh had not established a likelihood of prevailing on the merits because she had failed to demonstrate the requested records were not ‘public records’ under the CPRA, nor had she established the records were otherwise exempt from disclosure." ( Id. at pp. 520-521, 303 Cal.Rptr.3d 709.) Iloh appealed that order; this court affirmed the trial court's ruling.

While Iloh's appeal was still pending, CSI filed its anti-SLAPP motion, which asserted Iloh's petition should be stricken because it "arises from acts in furtherance of [CSI's] rights of petition and free speech in connection with a public issue, and [because] Iloh cannot demonstrate a probability of prevailing."

The trial court denied CSI's motion, finding that Iloh's claims do not arise from protected activity. According to the court, CSI's protected activity of newsgathering may have led to or been incidental to the conduct being challenged (i.e., the disclosure of the records), but it was not the basis of Iloh's claims. CSI appeals that order.

DISCUSSION

1. The Anti-SLAPP Statute

The Legislature enacted the anti-SLAPP statute in 1992 to address "what are commonly known as SLAPP suits (strategic lawsuits against public participation)—litigation of a harassing nature, brought to challenge the exercise of protected free speech rights." ( Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3, 168 Cal.Rptr.3d 165, 318 P.3d 833.) The statute authorizes a special motion to strike meritless claims early in the litigation if the claims "aris[e] from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue ...." ( § 425.16, subd. (b)(1).) The statute is " ‘intended to resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest.’ " ( Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619, 243 Cal.Rptr.3d 1, 433 P.3d 899.)

When evaluating a special motion to strike, the trial court must engage in a two-step analysis. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) "Only a cause of action that satisfies both prongs of the...