Judge Bruce G. Iwasaki, Case Number: 25STCV01775, Date: 2025-04-24 Tentative Ruling

Moving Party: Defendants CBS Broadcasting Inc., Paramount Global, and Wendy McMahon

This is an employment discrimination action. Plaintiff Andre Rhoden contends that Defendants CBS Broadcasting Inc., Paramount Global, and Wendy McMahon refused to hire him for a position because of his age, race, and sex. (Compl., ¶¶ 25-32.) In 2023, Defendants chose to hire Guadalupe Hernandez Pineda (Hernandez) for a newly created fulltime photographer/editor position. (Compl., ¶¶ 25-32.) The Complaint alleges causes of action for (1.) disparate treatment under FEHA, (2.) age discrimination under FEHA, and (3.) constructive discharge.

On March 25, 2025, Defendants filed a Special Motion to Strike the Complaint pursuant to Code of Civil Procedure section 425.16. On April 11, 2025, Plaintiff filed an opposition.[1]

The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted in substantial part and denied in part.

“A cause of action against a person arising 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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate special motions to strike strategic lawsuits against public participation (SLAPP). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) First, the defendant must show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) “The moving defendant bears the burden of identifying all allegations of protected activity, and the claims supported by them.” (Baral v. Schmitt (2016) 1 Cal.5^th 376, 396.) In the second step, it “ ‘is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Equilon, supra, 29 Cal.4^th at p. 61.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief—each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.)

Defendants’ objections to the declaration of Andre Rhoden: The following objections are sustained: 1, 2, 4, 7, 9, 10, 11, 12, 13, 16, 17, 19, 20, 21, 22, 23, 24, 27, and 28. All others are overruled.

Defendants’ objections to the declaration of Jeff Vaughn: 29 through 37 are sustained; none are overruled.

Plaintiff’s objections to the supplemental declaration of Erik Candiani: All are overuled.

As outlined above, in the first step of the analysis, Defendants must demonstrate that Plaintiff’s claims arise from one of four categories of protected activity. An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

“As our Supreme Court has recognized, ‘the “arising from” requirement is not always easily met.’ [Citation.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been “triggered” by protected activity does not entail that it is one arising from such.’ [Citation.] ‘A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” [Citations.]’ [Citation.] ‘[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Put another way, courts should first identify ‘the allegedly wrongful and injury-producing conduct that provides the foundation for the claims,’ and then determine whether that conduct itself constitutes protected activity. [Citations.]” (Callanan v. Grizzly Designs, LLC (2022) 81 Cal.App.5th 517, 526 (Callanan) [citing Park, supra, 2 Cal.5th at pp. 1062-1063].)

Defendants argue that Plaintiff’s claims arise from protected activity under Code of Civil Procedure section 425.16 because Plaintiff’s Complaint arises from an act in furtherance of Defendant’s speech in connection with a public issue.

The Complaint alleges that Defendants acted with discriminatory intent in its hiring practices. (Compl., ¶¶ 11-19.) While, normally, hiring practices would not infringe on free speech issues, in this case, Defendants argue that both Plaintiff and Hernandez’s roles are critical to Defendant CBS’s exercise of its First Amendment rights in its operation as a news broadcasting company.

At the crux of the Complaint is Plaintiff’s claim that he was overlooked for the new full-time Video-Editor permanent position, which required greater skills and responsibilities, for someone who was younger, female, and Hispanic.[2] (Compl., ¶¶ 35-39.) Here, all the alleged actions took place in the context of Defendant’s business of creating and broadcasting the news. (Compl., ¶¶ 14-42.)

As a preliminary matter, there is no dispute that reporting news is protected speech. (Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1521.)

Moreover, the purview of the anti-SLAPP statute is broad, protecting not only speech but also “conduct in furtherance of the exercise of the constitutional right of...free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e) [italics added].) “Furtherance means helping to advance, assisting. (See Oxford English Dict. Online (2d ed. 1989).)” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166.)

The question before this Court is whether Defendants’ challenged hiring/employment decision was in furtherance of its free speech in connection with an issue of public interest.

Of significance here is the collaborative aspect of reporting and presenting the news, particularly on television. “News stories addressing issues of public interest do not arise out of thin air. They often require newsgathering using offices, internet access, studios, and production services. Providing office space and related newsgathering facilities in exchange for investigative news stories furthers protected speech.” (San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 84.)

Here, Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510 is instructive. In Hunter, the plaintiff filed an employment discrimination suit alleging that two television stations owned by the defendant had “refused to hire him as a weather news anchor because of his gender and age.” (Id. at p. 1513.) The defendant argued that its “selection of a weather anchor ... qualifies as an act in furtherance of the exercise of free speech,” protected under the first prong of section 425.16. (Id. at p. 1521.) The court of appeal agreed, noting that previous cases had recognized that both reporting the news and creating a television show were “ ‘exercise[s] of free speech.’ ” (Ibid.) The defendant's selections of weather anchors “were essentially casting decisions regarding who was to report the news on a local television newscast,” and therefore “ ‘helped advance or assist’ both forms of First Amendment expression.” (Ibid.)

Plaintiff attempts to distinguish the facts here from Hunter by arguing that he was an off-air, low-level, hourly employee and his work was subject to substantial review, control, and approval by others, including CBS management and legal, before it went on air. (Rhoden Decl., ¶¶ 5-11.) Plaintiff relies heavily on Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871.

In Wilson, the California Supreme Court held that television network CNN’s decision to terminate Wilson, an off-screen webpage writer, for plagiarism was conduct “in furtherance of” its speech rights. (Wilson, supra, 7 Cal.5th at pp. 897, 898.) In the course of its analysis, our Supreme Court noted, however, that CNN had failed to carry its burden as to most of Mr. Wilson’s claims, as Wilson “was one of countless employees whose work contributes to what a large news organization like CNN says about the issues of the day, but was not among those who appear on-air to speak for the organization or exercise authority behind the scenes to determine CNN’s message.” (Id. at 897.) The high court concluded that CNN had not shown that its decisions regarding which assignments to give the employee, a field producer who did not exercise authority to determine CNN's message, had a substantial relationship to its ability to speak on matters of public concern. (Id. at pp. 896–897.) Plaintiff argues in the same vein that Defendant has not carried its burden.

The Wilson Court defined the question before it as “whether, and when, a news organization’s selection of its employees bears a sufficiently substantial relationship to the organization’s ability to speak on matters of public concern to qualify as conduct in furtherance of constitutional speech rights.” (Wilson, supra, 7 Cal.5th at p. 894.) The Wilson court continued stating that, “as a general rule, a legal challenge to a particular staffing decision will have no substantial effect on the news organization's ability to speak on public issues, which is the anti-SLAPP statute’s concern.” (Id. at p. 896.) Nonetheless, Wilson immediately qualified its general rule by favorably citing Hunter, supra, 221 Cal.App.4th 1510, 1527. (Wilson, supra, 7 Cal.5th at p. 896.)[3] As noted, the Supreme Court concluded that Wilson was one of many who contributed to the news gathering mission but did not “exercise authority behind the scenes to determine CNN’s message.” (Id. at p. 897.)

Here, Plaintiff’s complaint challenges Defendants’ hiring decision for the newly created full-time video-editor position.

By way of background, Defendants submit evidence that KCBS and KCAL (collectively, Stations) are stations owned and operated in Los Angeles[4] by Defendant CBS Broadcasting Inc. (Wieland Decl., ¶¶ 1, 4.) Both Stations predominately broadcast local news programming. (Wieland Decl., ¶ 4.) Part of this production includes promoting their news broadcast by airing promotional ads or “promos.” (Wieland Decl., ¶ 6.) “These promos, by definition, are designed to create interest and viewership in the newscasts or specific stories the Stations will air and that the Stations believe are of public interest or should be of public interest.” (Wieland Decl., ¶ 6.) “The Stations continuously exercise editorial discretion in determining what is newsworthy and warrants reporting and promotion, the depth and scope of coverage, the timing of when the story will air, and how the story should be presented and delivered. These choices fundamentally and intentionally shape the message and content of the Stations’ communications to its audience.” (Wieland Decl., ¶ 7.)

Relevant to the specific allegations in the Complaint, Plaintiff was hired in March 2022 as a Video-Editor contractor. (Compl., ¶ 19.) Defendant CBS hired Plaintiff as a “per diem” editor for the Stations’ Creative Services Department. (Wieland ¶¶ 4, 6, Ex. B.) Per diem employees were assigned hours and work as needed; there was no guaranteed number of hours and no guaranteed schedule. (Wieland Decl., ¶ 6.) In 2022, the Creative Services Department had four Editors (including Plaintiff); two of whom were per diems. (Wieland Decl., ¶ 6.)

In May 2023, the Stations’ Director of Brand Strategy and Creative Management, Erik Candiani (Plaintiff’s supervisor) obtained permission to hire a full-time, staff (not per diem), advanced, multiskilled Photographer/Editor; this new hire needed to be someone who could consistently create high-end promotional spots. (Wieland Decl., ¶ 17; Candiani Decl., ¶¶ 3, 5.) The position was important as the Stations’ Creative Services Department’s filming and editing processes are both critical to presenting and promoting the newscasts. (Wieland Decl., ¶ 10; Candiani Decl., ¶ 10.) Defendant describes the positions having significant amount of creative decision-making in how the promos are created:

“The Creative Services Photographer should be (and the person ultimately hired for role, described below, is) responsible for capturing thoughtful high-end imagery, well-composed talent shots/lines on location, creative photography, and excellent audio. In my opinion, Creative Services footage is expected to be elevated above typical news footage because it is captured with higher-end gear, allows more time for planning and post and has a longer shelf life on the air.”

“An Editor in the Creative Services Department takes this footage (and other available footage) and uses it to prepare cinematic quality videos using complex editing techniques, such as smooth and creative transitions between scenes, well-designed motion graphics with key messages to highlight key points to the audience, layered audio and sound effects, and impactful visuals and sounds designed to invoke strong emotional reactions.” (Candiani Decl., ¶¶ 7-8.)

The responsibilities for both positions include “capturing moments that both inform and engage the audience, creating promotional materials for the Stations’ newscast and stories that feel professional, current, and aligned with the fast-paced world of news.” (Candiani Decl., ¶ 10.)

Even the Complaint alleges that Plaintiff’s less demanding, and less responsible per diem position involved “spearhead[ing] the filming, lighting, and shooting of promotional videos.” (Compl., ¶ 24.) Defendants’ evidence corroborates these allegations: Plaintiff “was responsible for creating compelling promotional spots to advertise and promote interest in upcoming news or sports stories that would be featured during the newscasts. This included shooting (at times) or combing through and selecting compelling film footage, which he then edited into 15-30 second promotional spots (or mini-news story, teaser ads), that embodied the Stations’ editorial viewpoint and brand identity.” (Candiani Decl., ¶ 5.)

With this evidence in mind, the Court turns to the first prong inquiry, which focuses on “the defendant's activity that gives rise to his or her asserted liability – and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)

Defendants’ evidence indicates the position Plaintiff claims he should have been awarded was substantially involved in creating the speech at issue – the promo messaging. Even as described by Plaintiff’s current per diem position, he asserted that he played “central role” in creating “award-worthy work.”[5] The evidence suggests that the position for which Hernandez was chosen exercises authority “behind the scenes to determine [the Stations’] message.” (See Wilson, supra, 7 Cal.5^th at p. 897.)

Further, Plaintiff’s argument that his position was subject to scripts within a “highly structured process” where the “entire message, tone, and content was completely determined” is exaggerated. (Rohen Decl., ¶¶ 6-7.) Instead, the scripts – which are single page rough outlines – that Plaintiff was given to create content still required his meaningful editorial input as to the visuals and audio. (Candiani Supp. Decl., ¶ 4, Ex. E, F, G.) As argued in reply, the limited direction of the scripts allowed for significant creative latitude in creating the speech for the broadcast.[6]

The foregoing evidence demonstrates Defendant CBS’s hiring decision for the full-time Photography-Editor position was an act “in furtherance” of” Defendant’s free speech.

Accordingly, Defendants have met their burden of showing that Plaintiff’s claims arise from protected activity.

On the second component of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) The Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup, supra, 39 Cal.4th at p. 291.) Plaintiff must demonstrate that the complaint is both “ ‘legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ ” (Ibid.)

The Complaint alleges causes of action for (1.) disparate treatment under FEHA, (2.) age discrimination under FEHA, and (3.) constructive discharge.

“FEHA prohibits an employer from subjecting an employee to an adverse employment action based on the employee's protected status. [Citation.] In evaluating claims of discrimination under FEHA, California courts apply the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 161; see Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.)

“Under this approach, if the plaintiff establishes a prima facie case supporting his or her discrimination claim, the burden of production shifts to the employer to rebut the presumption of discrimination by offering a legitimate, nondiscriminatory reason for the adverse employment action.” (Martin, at p. 161; see Harris, at p. 214; Guz, at pp. 355-356.) To state a prima facie case of discrimination under FEHA, the plaintiff must show (1) he was a member of a protected class; (2) he was qualified for the position she sought or was performing competently in the position she held; (3) he suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. (Guz, at p. 355; Martin, at p. 162.) The “plaintiff must establish a causal nexus between the adverse employment action and [her] protected characteristic.” (Martin, at p. 162; see Guz, at p. 355; see Gov. Code, § 12940, subd. (a).)

In opposing the motion to strike, Plaintiff only addresses discrimination claims based on age, gender, and race. (See Opp., 4:10 [“its decision to hire a younger, Hispanic female instead of Rhoden”]; 5:12-13 [“Mr. Rhoden contends that CBS refused to hire him for positions for which he was qualified because of his age, race, and sex.”]; 15:9-11.) Accordingly, allegations of discrimination based on any other characteristics in the Complaint have been abandoned for the purposes of this motion and are stricken.

Further, Plaintiff submits no direct or circumstantial evidence of any discrimination based on age. (Rhoden Decl., ¶¶ 1-38; Vaughn Decl., ¶¶ 1-15.) In fact, there is no evidence as to Hernandez’s age or any evidence suggesting Plaintiff’s age was a motive in his failing to be hired for the full-time position. Thus, on this basis, Plaintiff has failed to carry his burden on the second prong with respect to the second cause of action for age discrimination. The Court strikes the entirety of the second cause of action.

Instead, Plaintiff submits evidence that, at the time he was passed over for the full-time position, he was told by his supervisor, Candiani, that “There are too many white males. We need females to mix things up.” (Rhoden Decl., ¶ 26.)

The disputed claim that Plaintiff’s supervisor told him that there were “too many white males,” if believed, suggests a tendency to discriminate against white men in employment decisions, and may support a finding that Plaintiff’s race or sex was a motivating factor in the adverse employment action. (See Godwin v. Hunt Wesson, Inc. (9th Cir.1998) 150 F.3d 1217, 1221 [applying California law]; Cordova v. State Farm Ins. Companies (9th Cir.1997) 124 F.3d 1145, 1148–1149 [held that a derogatory comment about another employee of the same national origin could support an inference of a discriminatory motive toward the plaintiff].)

But upon being hired, Plaintiff represented to CBS that he identified as “Hispanic/Latino.” (Noda decl., Exh. A.) Plaintiff does not dispute the authenticity of this document. Accordingly, the Court finds, Plaintiff fails to establish even a minimal showing of racial discrimination. The only conceivable basis for a discrimination claim Plaintiff can assert at this Step Two analysis is based on being male.

Defendants offer evidence that there were legitimate, nondiscriminatory reasons to hire Hernandez over Plaintiff. Specifically, Hernandez was the most qualified of all of the applicants; Hernandez created compelling narratives, had advanced shooting skills, and was a top-flight editor. (Candiani Decl., ¶ 21.) In contrast, Plaintiff was not qualified for the Photographer/Editor position and never considered for it. (Candiani Decl., ¶¶ 14, 16, 20.) [7]

However, the evidence of a legitimate, nondiscriminatory reason not to hire Plaintiff does not necessarily compel the conclusion that such a legitimate reason was the sole or determinative factor in his being passed over. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098 [“The employer's evidence must be sufficient to allow the trier of fact to conclude that it is more likely than not that one or more legitimate, nondiscriminatory reasons were the sole basis for the adverse employment action.”].) Instead, the evidence of a discriminatory intent (i.e., Candiani’s purported comment about the company needing females) together with the evidence of a legitimate, nondiscriminatory reason for the decision present a factual question for the trier of fact to resolve. As such, on this summary judgment like procedure, Plaintiff has carried his minimal burden on the second prong with respect to the first cause of action solely as to his claim of sex discrimination. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 [At this stage of the proceedings, a plaintiff “need only establish that his or her claim has ‘minimal merit.’ ”].)

Accordingly, with respect to the first cause of action, all grounds for alleged discrimination are stricken except the claim based on Plaintiff being male.

With respect to the third cause of action, “employees discharged in violation of fundamental public policy may bring an action against their employer sounding in tort.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1098.)

“[T]o establish a constructive discharge, an employee must plead and prove ... that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 826.)

This claim is based on the same underlying conduct as the FEHA discrimination claims. (Compl., ¶¶ 93-97.) Here, however, the factual basis for the constructive discharge claim is unclear. As best the Court can tell, the claim is based on Plaintiff’s reduction of hours. (Compl., ¶¶ 41-42, 93-97.)^{^[8]}

However, Defendant’s evidence shows that the Stations reduced or eliminated the shifts of nearly all of its per diem employees across several departments due to a cost cutting initiative starting in May 2023. (Noda Decl., ¶ 17.) Moreover, the evidence shows that the group of per diem employees who had their hours reduced included women and minorities – undermining any discriminatory intent. (Noda Decl., ¶ 16.) Simply put, there is no evidence of discriminatory motive in the decision to reduce the per diem employee hours.

Finally, Defendants argue that Plaintiff cannot – as a matter of law – assert claims against Defendants McMahon (an individual) or Paramount Global (a separate entity from Defendant CBS) because they were not Plaintiff’s “employer” under FEHA. Plaintiff fails to address these arguments.

The FEHA standard of an employer “requires a ‘comprehensive and immediate level of “day-to-day” authority' over matters such as hiring, firing, direction, supervision, and discipline of the employee.” (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499.)

While McMahon – as the President and Chief Executive Officer of CBS News, Stations, and CBS Media Ventures – is a senior executive at CBS, she was not Plaintiff’s “employer.” (Noda Decl., ¶ 8.) That is, with respect to Defendant McMahon, the law is clear: “individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Reno v. Baird (1998) 18 Cal. 4th 640, 663.) Moreover, “liability for constructive discharge can only be asserted against the employer” (Dunn v. Infosys Ltd. (N.D. Cal., Oct. 5, 2012, No. 12-CV-3561 YGR) 2012 WL 4761901, at *3.)

Similarly, Defendants contend that Paramount Global is not an “employer” such that the claims against it fail as a matter of law. Defendants submit evidence that Paramount Global is an indirect parent of CBS, but a wholly separate entity that never employed Plaintiff, and does not employ the employees of the Stations or control the hiring decisions as to those individuals. (Noda Decl., ¶ 8.) This argument is well taken. (See Jones v. County of Los Angeles (2002) 99 Cal. App. 4th 1039, 1045 [“If the County is not plaintiff’s employer, an employment-related lawsuit cannot proceed against that separate entity.”].)

Because Plaintiff does not address this issue, he fails to make a bare minimum prima facie showing for his claims against Defendants McMahon and Defendant Paramount Global and has not met his burden on the second prong as to these Defendants. All causes of action against them are stricken.

Lastly, Defendant argues that its hiring decision is protected by the First Amendment. In making this argument, Defendants cite McDermott v. Ampersand Pub., LLC (9th Cir. 2010) 593 F.3d 950.

In McDermott, the Ninth Circuit agreed with an administrative law judge that a newspaper did not have to “reinstate employees it discharged for union activity directed at pressuring the newspaper's owner and publisher to refrain from exercising editorial control over news reporting.” (Id. at 953.) The Court explained that the government or a court “[i]ntervening to support the employees’ effort to limit the control of the [newspaper's] owner over its news pages necessarily poses some risk to that owner's First Amendment rights.” (Id. at 962.) In a case where the discharged employees were seeking to undercut the owner's message, “[t]elling the newspaper that it must hire specified persons, namely the discharged employees, as editors and reporters constituting over 20 percent of its newsroom staff is bound to affect what gets published.” (Id.) In other words, McDermott protected the right of an employer not to employ a person whose speech undermined the employers’ preferred message.

McDermott does not stand for the general proposition that discriminatory conduct is protected by the First Amendment such that Plaintiff cannot prevail on any of his claims as a matter of law.

It is insufficient for Defendants to simply satisfy the first prong of the anti-SLAPP statute. Stated another way, no case cited indicates that the anti-SLAPP’s first prong is coextensive with First Amendment protections. Rather, First Amendment cases provide a much more nuanced approach – rather than a blanket immunity seemingly suggested by Defendants. The law suggests that the inquiry turns on highly specific circumstances. (See Claybrooks v. American Broadcasting Companies, Inc. (M.D. Tenn. 2012) 898 F.Supp.2d 986, 999 [holding that the plaintiffs could not maintain a discrimination action against the defendant television producer because “the Shows’ casting decisions are part and parcel of the Shows’ creative content”]; Napear v. Bonneville International Corporation (E.D. Cal., Mar. 31, 2025, No. 2:21-CV-01956-DAD-SCR) 2025 WL 958128, at *8.)

In this regard, Defendants’ First Amendment analysis is undeveloped. Specifically, Defendants’ argument does not address how a hiring decision based on allegedly discriminatory factors “forces” a message different than the message intended by the publisher. (See National Association of African-American Owned Media v. Charter Communications, Inc. (C.D. Cal., Oct. 24, 2016, No. CV 16-609-GW(FFMX)) 2016 WL 9023601, at *10; see also Moore v. Hadestown Broadway Limited Liability Company (S.D.N.Y. 2024) 722 F.Supp.3d 229, 261.) Thus, on this motion, the First Amendment defense fails.

The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted in its entirety as to Defendants McMahon and Defendant Paramount Global. The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted as to the second and third causes of action against Defendant CBS. The special motion to strike is granted as to the first cause of action on all claims of discrimination except as to sex.

[1] On April 21, 2025, three days before the hearing on the anti-SLAPP motion, Plaintiff filed a motion for leave to conduct limited discovery. The motion was not set to be heard until July 2025. Plaintiff did not move for ex parte relief to continue the anti-SLAPP and advance the discovery motion until April 22, 2025. The ex parte motion was heard and denied on April 23, 2025 – a day before the hearing on the anti-SLAPP motion. Plaintiff provided no explanation for the delay in bringing the motion to conduct limited discovery. Nor did Plaintiff specify what additional facts he expected to discover or how they would result in information to support his prima facie case. Plaintiff was aware of all the evidence against him at issue on the anti-SLAPP motion as early as the filing of this motion, of March 25, 2025. Plaintiff’s delay in seeking this relief was unreasonable.

[2] Although Plaintiff claims he was not hired for the position because he is white, when he was initially hired by CBS, he identified himself as “Hispanic or Latino.”

[3] However, to the extent the plaintiff's claims rested on CNN having decided to terminate him for plagiarism, that was “conduct ‘in furtherance of’ the organization's free speech rights” for purposes of the anti-SLAPP statute. (Id. at p. 898 [citing Code Civ. Proc., § 425.16, subd. (e)(4)].) This holding was based on CNN’s evidence that its ability to participate meaningfully in public discourse depended on its integrity and credibility, and disciplining an employee for violating journalistic ethical standards “furthers a news organization's exercise of editorial control to ensure the organization's reputation, and the credibility of what it chooses to publish or broadcast, is preserved,” objectives that lay “ ‘at the core’ ” or CNN's function. (Ibid.)

[4] Los Angeles is the second largest media market in the country, with approximately 17.2 million viewers. (Wieland Decl., ¶ 4.)

[5] More importantly, however, Plaintiff’s per diem position duties are not directly relevant to the arguably different position that he was ultimately not hired for. (Reply 10:21-22.) That is, material to whether the activity was in furtherance of speech requires analysis of the full-time position that Hernandez was hired for.

[6] The fulltime photographer/editor position that Plaintiff claims he was wrongfully denied appears to present a stronger case for Defendant’s furtherance of its rights of free speech than the weather anchor in Hunter, supra, 221 Cal.App.4^th 1510. The photographer/editor who decides what and how to shoot a scene, present a quote, and edit a sequence for the production of news highlights and promotions more directly expresses the Stations’ message than the recitation of a list of tomorrow’s high temperatures by a weather anchor.

[7] Indeed, Plaintiff offers no documentary evidence that he applied for the position. Defendant’s human resources executive stated that there was no evidence the Plaintiff applied for the Photographer/Editor position. (Noda Decl. ¶ 12.)

[8] A claim that he simply retained his current per diem position – that is, was not hired for the full-time position – cannot form the basis of a constructive termination claim where these are the conditions upon which he was originally hired.

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