412 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com news reporter for alleged plagiarism. The Supreme Court reasoned that an adverse employment action may be an action entitled to anti-SLAPP protection if that action was taken in furtherance of speech or petitioning rights, as CNN’s was.8 Two Court of Appeal decisions likewise held that employers could move to dismiss employee lawsuits arising from employer actions that were in furtherance of free speech rights. These decisions endorsed anti-SLAPP motions by a singer who fired a drummer, by a newspaper that fired a blogger, and by a university that investigated a professor. The first decision upheld an anti-SLAPP motion by a singer/songwriter who fired his band’s drummer. When the drummer brought FEHA claims for age, disability, and medical condition discrimination, the singer/songwriter filed an anti-SLAPP motion to dismiss because the claims arose in connection with an issue of public interest given the media’s and the public’s interest in the music involved. The Court of Appeal reasoned 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 to free speech.”9 The second decision held that a defendant university’s anti-SLAPP motion should have been granted to dismiss the defamation claim of a professor arising from several internal investigations into the professor’s alleged discriminatory conduct. The Court of Appeal reasoned that the university’s actions were constitutionally protected statements that occurred in an official proceeding.10 On the other hand, the Court of Appeal held in 2021 that the alleged wrongful suspension and termination of a public school teacher did not constitute protected activity under the anti-SLAPP statute because the plaintiff’s claims were based on reassignment and termination of employment decisions, rather than on communications made regarding the employer’s investigation of the teacher’s alleged misconduct, or the investigation as a whole.11 21.4 Special Proof Required to Impose Punitive Damages California law provides corporate defendants with special protections against the imposition of punitive damages. The plaintiff must prove by “clear and convincing” evidence (not merely “the preponderance of the evidence”) that she suffered from the fraudulent, malicious, or oppressive conduct of a corporate officer, director, or “managing agent,” or that an officer, director, or managing agent knowingly ratified the relevant wrongful conduct or had advance knowledge of the wrongdoing employee’s unfitness for employment.12 The “clear and convincing” standard of proof applies not only to whether the conduct was fraudulent, malicious, or oppressive but also to whether the employee perpetrating or ratifying the wrongdoing was a managing agent.13 Another pro-defendant aspect of California law in this regard is that no award of punitive damages is valid absent proof of the defendant’s net worth,14 and discovery into that net worth is forbidden unless the plaintiff first shows a likelihood that punitive damages will be awarded on the facts of the case.15 And more good news for corporate employers on this front: punitive damages are not available for Labor Code violations.16 Nonetheless, courts have broadly construed the term “managing agent” to include individuals who are not corporate policy-makers. In 2020, the Court of Appeal affirmed a jury award of punitive damages for a retail store manager who had been mistreated and then fired. The alleged wrongdoer, the plaintiffs’ regional supervisor, was
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