Aber v. Comstock

• Decision Date: 18 December 2012
• Docket Number: A134701
• Citation: 212 Cal.App.4th 931,151 Cal.Rptr.3d 589
• Parties: Lisa ABER, Plaintiff and Respondent, v. Michael COMSTOCK, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

212 Cal.App.4th 931

151 Cal.Rptr.3d 589

Lisa ABER, Plaintiff and Respondent,

v.Michael COMSTOCK, Defendant and Appellant.

A134701

Court of Appeal, First District, Division 2, California.

Filed December 18, 2012;

Trial Court: Superior Court of the City and County of San Francisco, Trial Judge: Honorable Ronald E. Quidachay (San Francisco City & County Super. Ct. No. CGC–10–503100)

For Defendant and Appellant: Anderies & Gomes, Shane Keith Anderies, Anne Leinfelder.

For Plaintiff and Respondent: Bonagofsky & Weiss, John Scott Bonagofsky, Elizabeth Weiss; California Anti–Slapp Project, Mark Allen Goldowitz, Paul Clifford, Ryan Metheny.

Richman, J.

Plaintiff Lisa Aber sued her employer and two of its employees based on an alleged sexual assault by the employees. Defendant Michael Comstock, one of the employees, filed a cross-complaint against Aber, alleging claims for defamation and intentional infliction of emotional distress. Aber filed a special motion to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court granted the motion and dismissed the cross-complaint. Comstock appeals. We affirm.

BACKGROUND

The Complaint and Cross–Complaint

The litigation began with a complaint filed by Aber on August 31, 2010. It named three defendants: Wolters Kluwer United States (Kluwer), her employer, and Comstock and James Cioppa, two employees of Kluwer. The complaint alleged four causes of action: (1) sexual harassment; (2) failure to investigate and prevent sexual harassment; (3) sexual battery; and (4) intentional infliction of emotional distress. The first cause of action was against all defendants; the second against Kluwer only; and the third and fourth against Comstock and Cioppa.

The complaint was based on events on the evening of June 5, 2010, at and after a business-related social gathering where, Aber essentially alleged, Cioppa, her supervisor and an officer at Kluwer, and Comstock, a fellow employee, tried to get her drunk and convince her to have sex with them, implying that her job would be secure if she did so. Aber alleged what occurred that evening in vivid detail, in 12 paragraphs to be exact.

On December 21, 2010, Kluwer filed its answer to the complaint, and on April 6, 2011, Cioppa his answer. Meanwhile, Comstock was not served with the complaint until May 7, 2011. On June 3, 2011 Comstock filed his answer and also a cross-complaint, the pleading that is the subject of this appeal.

Comstock's cross-complaint alleged two causes of action: (1) defamation, and (2) intentional infliction of emotional distress. Both causes of action were alleged to arise out of the same “common allegations,” which included the following:

Comstock first “denies any wrongdoing and denies all material allegations against him” in Aber's complaint. Then, Comstock went on to allege a version of events on June 5, 2010, that was in stark contrast to that alleged by Aber. It began with Aber emailing Comstock that she would “love to meet” Comstock and Cioppa on June 5; that they met and had one or more drinks at the One Market Restaurant; and then it alleged this:

“7. After leaving One Market Restaurant, COMSTOCK, ABER, and CIOPPA traveled in ABER's car to her apartment in the Marina District of San Francisco. ABER invited COMSTOCK and CIOPPA up to her apartment. ABER made drinks for all three of them.

“8. After spending some time in ABER's apartment, COMSTOCK, ABER and CIOPPA walked to the Tipsy Pig Restaurant on Chestnut Street near ABER's apartment.

“9. Toward the end of the evening, COMSTOCK, ABER and CIOPPA left the Tipsy Pig Restaurant and walked to a restaurant suggested by ABER to eat. When they had finished eating, COMSTOCK, ABER and CIOPPA got into a cab. The cab stopped first at ABER's apartment to drop her off, and then continued to CIOPPA's apartment to drop off CIOPPA and COMSTOCK. COMSTOCK did not exit the cab when the cab stopped to drop off ABER at her apartment. COMSTOCK had fallen asleep in the cab before it reached ABER's apartment.

“10. During the evening of June 5, 2010, COMSTOCK and CIOPPA asked ABER if she wanted to have brunch with them the following day. COMSTOCK is informed and believes, and thereon alleges that on June 6, 2010, CIOPPA called ABER. On information and belief, COMSTOCK alleges ABER told CIOPPA she could not meet for brunch that day because she was hung over and sick. On information and belief, COMSTOCK alleges ABER told CIOPPA she had CIOPPA's and COMSTOCK's jackets in her apartment, and that she would bring them to work on Monday.

“11. On the morning of Monday, June 7, 2010, COMSTOCK was in CIOPPA's office in WOLTERS KLUWER San Francisco. ABER stopped by CIOPPA's office with CIOPPA's and COMSTOCK's jackets. ABER stated she was sorry she could not meet them for brunch on Sunday, but that she had been vomiting all day. COMSTOCK and CIOPPA asked ABER if she wanted to get coffee with them that morning. ABER accepted and went to get coffee with them.

“12. Later that morning, as COMSTOCK was returning from a meeting outside the WOLTERS KLUWER office, he saw ABER near the reception desk of the office. ABER approached COMSTOCK and asked if something was wrong. COMSTOCK replied that nothing was wrong. ABER responded that she could tell that something was wrong. ABER responded by reaching out and touching COMSTOCK on the arm and elbow and stating, “Michael, I'm so sorry.” COMSTOCK did not speak to ABER again.

“13. COMSTOCK is informed and believes, and thereon alleges that on the afternoon of Wednesday, June 9, 2010, ABER asked CIOPPA if he and COMSTOCK wanted to go out after work. COMSTOCK is informed and believes, and thereon alleges that CIOPPA declined the invitation.

“14. COMSTOCK is informed and believes, and thereon alleges that ABER thereafter orally published false statements about COMSTOCK to third parties, including but not limited to friends, employees of WOLTERS KLUWER, health care practitioners, and the police. These false statements included the fabricated story that COMSTOCK had sexually assaulted ABER on the night of June 5, 2010.

“15. COMSTOCK is informed and believes, and thereon alleges that ABER made these statements clearly identifying COMSTOCK as the alleged assailant in an effort to damage his reputation.

“16. COMSTOCK is informed and believes, and thereon alleges ABER reported to a nurse at Kaiser Permanente in or around June 2010 that she had been sexually assaulted. On information and belief, COMSTOCK alleges ABER provided the nurse with COMSTOCK's name and place of employment. On information and belief, COMSTOCK alleges the nurse then told ABER the nurse must report the sexual assault to the police. On information and belief, COMSTOCK alleges the nurse then called the police and asked ABER to repeat her story to the police.

“17. COMSTOCK is informed and believes, and thereon alleges that ABER reported the allegations of sexual assault against COMSTOCK to ERIN BUSH, Human Resources, at WOLTERS KLUWER in or around late June 2010.¹

“18. COMSTOCK is informed and believes, and thereon alleges that ABER knew the falsity of her statements when she made them. ABER acted with malice, fraud, and oppression.”

The Motion to Strike

On July 8, 2011, Aber filed a special motion to strike the cross-complaint under Code of Civil Procedure section 425.16 (SLAPP or anti-SLAPP motion). ² The SLAPP motion was supported by a lengthy memorandum of points and authoritiesand a declaration of one of Aber's attorneys, which attached eight exhibits, most of which were claimed to be excerpts from the website of the United States Equal Opportunity Commission dealing with the subject of sexual harassment in employment.

On July 26, 2011, Comstock filed his opposition to the SLAPP motion. It included a memorandum of points and authorities and three declarations, of Comstock's attorneys Shane Anderies and Annie Leinfelder and of Comstock himself. Comstock's opposition also included a request for judicial notice, seeking notice of a description of a case handled by Comstock's attorney Anderies.

The Anderies declaration attached numerous pages from Aber's deposition and what were claimed to be copies of telephone records and the notes of Kluwer Human Resources manager Erin Bush. The Leinfelder declaration testified essentially only to her hourly billing rate. Comstock's declaration was a total of seven paragraphs, and provided in its entirety as follows:

“1. I am a party Defendant in the above-entitled action. I make this declaration based on personal knowledge. If called to do so, I could and would testify truthfully about the matters stated herein.

“2. I know Plaintiff Lisa Aber from working at Wolters Kluwer.

“3. On or about August 6, 2010, I received an email from Defendant James Cioppa (Cioppa) stating that one of Cioppa's employees told Cioppa that Aber was telling employees at Wolters Kluwer that she got me fired and that there was ‘an ongoing investigation going on because of things [I] did.’ Cioppa ended his email with, ‘Sorry to forward this type of message to you; however I do believe you have a right to know that someone is making negative statements about your character.’ A true and correct copy of this August 6, 2010 email is attached hereto as Exhibit A.

“4. On or about May 7, 2011, I was served with Plaintiff and Cross–Defendant Lisa Aber's Complaint for sexual harassment, sexual battery and intentional infliction of emotional distress.

“5. I did not attend Aber's deposition on March 10, 2011 because I had not yet been served in the action. I did not have the opportunity to examine Aber at this deposition.

“6. After I was served with the Complaint, I began to receive discovery previously propounded and responded to in the action, including the deposition transcript of Aber's testimony, documents produced by Aber, documents produced by Wolters Kluwer, and documents subpoenaed from Aber's physicians and therapists.

“7. I learned from...