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Eddie Money’s decision to fire drummer Glenn Symmonds is protected activity under California’s anti-SLAPP statute, an appeals court has ruled.
Money in June 2016 filed an anti-SLAPP motion in response to Symmonds’ claims that he was fired because of his age and disabilities from bladder cancer and a back injury, arguing that playing music is a First Amendment right and Money’s choice of bandmembers is protected activity stemming from that right. Judge Rafael Ongkeko denied the motion, finding Symmonds’ lawsuit arose from the alleged discriminatory conduct and not the decision to fire him. It didn’t reach the second prong of the anti-SLAPP analysis, which addresses the plaintiff’s probability of prevailing on the merits of his claim.
The 2nd District Court of Appeal on Friday sided with Money, overturning the decision and sending the matter back to Los Angeles County Superior Court for further analysis with regard to the likelihood that Symmonds will prevail. (Read the full opinion, below.)
“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,” writes justice Helen Bendix, noting that the California Supreme Court has held that “the alleged wrongfulness of a defendant’s conduct is an issue for the second step of anti-SLAPP analysis, not the first.”
Further, the panel held that Symmonds’ claim arises from that protected conduct because the conduct supplied one of the required elements of his employment discrimination claim, that he “suffered an adverse employment action.”
“In so concluding we do not suggest that employment decisions as a general matter are acts in furtherance of the right to petition or free speech for anti-SLAPP purposes,” writes Bendix. “Here, as we have explained, Mahoney’s decision to terminate Symmonds or, put another way, not to have Symmonds perform music with him, did implicate Mahoney’s free speech rights.”
Symmond’s complaint also includes allegations that Money sexually harassed his fiancee. Those claims are not impacted by this decision. Trial is currently set for August.
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