4/29/26 Lively v. Wayfarer - impact stipulating to a FEHA element could have on 47.1 motion

Added: 2026-05-06

[00:00:00]So yesterday in the Lively versus Wayfair matter, the judge apparently Suisponte on his own asked where the the parties are going to stipulate to one of the elements of the California FIHA retaliation claim and that is the subjective element of FIHA which is that the plaintiff had a reasonable belief that the things that they were complaining about were illegal.

[00:00:30]And what that does is that it significantly shrinks what would come into court as trial exhibits because the plaintiff will no longer have to prove that they had a reasonable belief in bringing the complaint that they did that they did that they had a reasonable belief for the protected activity. So it's not stipulating as to the protected activity what that is. We still don't know what that is, but it's stipulating to the fact that she had a reasonable belief that there was a hostile work environment on the basis of gender or that she was being sexually harassed.

[00:01:08]So, the instruction that would go to the jury is that this element is one that the parties are agreeing to that she had a belief that these things were happening to her, that she had a reasonable belief that things things were happening to her. So you don't need to decide that or not. And so they will be focused only on deciding whether or not the actions that the defendants took after the protected activity, whatever that is, were substantially motivated by her making that complaint. It also reduces the number of witnesses, the amount of evidence. There wouldn't be any testimony about what she experienced.

[00:01:53]at in the workplace because th that's all been stipulated to that fine you we we accept that you had a belief that these things were happening to you and so none of that evidence would then come in. So, a jury would only be evaluating the evidence that the plaintiff puts forward that the actions that the defendants took were retaliatory and only the evidence that the defendants put forward to show that no, they had another reason. They had another reason for the actions that they took. And so, this does narrow significantly the the stuff that the jury would have to hear.

[00:02:33]And that's why it's a question that the judge posed for the parties to consider because he, the judge, wants a smaller, quicker trial. One of the things that I've been thinking about is how could a stipulation like that impact the pending 47.1 motion? And the statute 47.1 defines which type of communication gets this special kind of protection under California law which triggers these crazy damages. So first of all the statements have to have been made without malice. They have to be factual not opinion. And the individual that made those statements had to have a reasonable belief that she could have filed a complaint of sexual assault, sexual discrimination, or sexual harassment. And if it is determined or stipulated to that she had a reasonable belief to raise a complaint of sexual harassment, then arguably that element of the California Civil Code 47.1 would also be met. Now, we have no case law that actually looks at how these things play into each other. So this is just sort of speculating as to how the parties might use it in these different components that are happening in litigation.