Can an employer appeal against a motion to strike an employee's claim for wrongful termination because that claim arose from the employer's decision to terminate?

The trial court denied an employer's anti-SLAPP¹ motion to strike its employee's claim for wrongful termination because that claim arose from the employer's decision to terminate, which the court concluded was not "protected activity" under the anti-SLAPP statute (Civ. Proc. Code, 425.16).² The employer appeals, arguing that the claim was based upon "protected activity" because the employee alleged that part of what made the termination wrongful was the employer's conduct in using subterfuge to secure an administrative decision finding the employee responsible for violating federal labor law. The anti-SLAPP statute applies only when the "[protected] activity itself is the wrong complained of" rather than "a step leading to [a] different act[ion] for which liability is asserted." (Park v. Board of Trustees of Cal. State Univ. (2017) 2 Cal.5th 1057, 1060 (Park).) Because the wrong complained of here was the termination, and the employer's conduct before the administrative agency was one of many alleged "step[s] leading" to that termination, the trial court correctly concluded that the employee's wrongful termination claim was not based upon "protected activity." We accordingly affirm.

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