When a defense firm answers a wrongful-termination or retaliation complaint with a special motion to strike under Code of Civil Procedure section 425.16, the stakes shift immediately. A prevailing defendant collects attorney fees and costs as of right under section 425.16(c)(1). An order denying the motion is directly appealable, and under Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, that appeal stays the entire case—discovery, trial date, everything—while the Court of Appeal takes its time. For a defendant who wants to stall and raise the cost of pursuing a meritorious claim, the motion is attractive even when it is weak.
The good news for the plaintiff bar is that most employment claims never clear the first prong. The statute protects speech and petitioning on matters of public interest; it was not written to shield an employer's decision to fire, demote, or refuse to promote someone. The work on the plaintiff's side is to keep the court's attention on the act that caused the harm, not on whatever communications happened to surround it.
The Two-Step Framework and Why Step One Decides Everything
A section 425.16 motion runs in two steps. First, the moving defendant must show that the challenged claim arises from activity protected under section 425.16(e)—statements before or in connection with an official proceeding, or conduct in furtherance of speech or petition rights in connection with a public issue. Only if the defendant carries that burden does the analysis move to the second step, where the plaintiff must show a probability of prevailing on the merits.
In employment cases the fight almost always lives in step one. If the adverse employment action is not protected activity, the motion fails and the merits never matter. That is why the defense works so hard to recharacterize an ordinary personnel decision as expressive conduct, and why the plaintiff's opposition should refuse to let the characterization drift.
"Arising From" Is the First Wall
The threshold question is what the claim actually arises from. In Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, a professor sued for national-origin discrimination after being denied tenure. The university argued the claim arose from the communications and deliberations within the tenure review process—protected petitioning activity. The Supreme Court rejected that. The injury-producing conduct was the tenure denial itself, an adverse employment decision. The internal communications were evidence of discriminatory motive, not the wrong being sued upon.
Park gave the plaintiff bar a clean rule: a claim does not arise from protected activity merely because protected activity preceded it, supplied evidence of it, or formed its context. The defendant must identify a specific act of protected speech or petitioning that is itself the basis for liability. A discrimination or retaliation theory built on the firing, the demotion, or the failure to accommodate will not satisfy that test, no matter how many emails and meetings surround the decision.
The Public-Issue Prong After FilmOn and Geiser
When the defense invokes section 425.16(e)(4)—conduct in furtherance of speech "in connection with a public issue or an issue of public interest"—the controlling analysis comes from FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133. The court asks two things: what public issue or issue of public interest does the speech implicate, and does the challenged activity contribute to public discussion of that issue. The second part is a functional test. Context matters—who was speaking, to whom, and for what purpose. Private reports sent to paying clients, as in FilmOn itself, do not contribute to any public conversation and fall outside the prong.
The Supreme Court tightened this further in Geiser v. Kuhns (2022) 13 Cal.5th 1238, cautioning courts not to read FilmOn so narrowly that ordinary protest and public commentary lose protection. For employment practitioners the practical takeaway runs the other direction: a dispute confined to the parties to an employment relationship rarely touches a public issue at all. The older but still-useful anchor is Rivero v. American Federation of State, County & Municipal Employees (2003) 105 Cal.App.4th 913, where statements about one supervisor's treatment of eight employees were held not to be a matter of public interest. Audience size and the private nature of the grievance both cut against (e)(4).
Recent appellate decisions applying FilmOn and Geiser in the employment setting have followed the same line. Allegations about workplace misconduct that concern only the employer, the complainant, and a handful of coworkers do not become a public issue because the subject—harassment, discrimination, retaliation—is one the public cares about in the abstract. The speech has to contribute to an actual public conversation, not merely sit within a broad topic. Where statements genuinely entered public debate—reporting on patient safety at a hospital, or misconduct by a public official—courts have found the prong satisfied, but those are the exceptions, and they turn on a real, identifiable public dimension rather than a thematic one.
Wilson v. CNN and the Act-by-Act Inquiry
The anchor case for mixed employment claims is Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871. A news producer sued for discrimination, retaliation, and defamation. The Supreme Court refused to adopt any categorical rule—neither that employment decisions are always outside the statute, nor that a media employer's staffing choices are always protected. Instead the court examined each claim and each underlying act separately.
Two holdings from Wilson matter in practice. A discriminatory or retaliatory motive does not, by itself, convert an employer's conduct into protected activity; and a protected setting does not automatically protect every decision made within it. Some editorial staffing choices—who reports the news—can implicate speech rights. But the discrimination and retaliation claims were analyzed act by act, and the defamation claim was run through the FilmOn public-interest test on its own terms. The lesson for opposition briefing is to disaggregate: force the court to name the specific act behind each claim and ask whether that act, standing alone, is protected.
Bonni and the Problem of Mixed Causes of Action
Many employment complaints plead a single cause of action that bundles several acts—some arguably protected, most not. Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995 governs that situation. A physician's retaliation claim under Health and Safety Code section 1278.5 rested partly on peer-review communications and partly on the hospital's disciplinary decisions, including suspension of privileges. The Supreme Court held that courts must parse a mixed cause of action into its component acts and apply the anti-SLAPP analysis to each. The peer-review communications could qualify as protected petitioning; the disciplinary actions themselves did not.
Bonni means a defendant cannot strike an entire retaliation claim by pointing to one protected communication buried inside it. It also means the plaintiff should plead and argue with the component acts in view, so the surviving conduct—the actual adverse actions—stays in the case even if an incidental communication falls out.
Practical Responses for the Plaintiff Side
Three moves decide most of these oppositions. Identify the injury-producing act and repeat it in every section of the brief; under Park, if that act is a termination or demotion, the motion is already failing. Separate the claims and the acts within them, following Wilson and Bonni, so the court cannot sweep protected and unprotected conduct together. And attack (e)(4) on the functional test from FilmOn—show that the speech reached a private audience for a private purpose and contributed to no public conversation.
The procedural posture deserves the same discipline that governs other defense gatekeeping tactics. The automatic stay on appeal makes an anti-SLAPP denial as consequential as the arbitration fights playing out elsewhere; the Illinois Supreme Court's recent refusal to send a wrongful-death claim to arbitration is a reminder that courts will police motions that function mainly to delay. Statutory interpretation is doing heavier work in these motions too, and the shift in how courts read remedial statutes after the end of Chevron deference is worth watching as defendants press broader readings of section 425.16(e). And because a prevailing defendant's fees can dwarf the value of a modest claim, the downside math resembles the apportionment exposure plaintiffs weigh under Prop 51—a reason to oppose with a clean record rather than hope the trial court sorts it out.
The statute rewards defendants who can dress an adverse action as speech. The entire plaintiff response is to undress it—to hold the court on the act that injured the client and to deny the defense the public issue it needs. Do that, and most employment anti-SLAPP motions do not survive the first prong.