L.S.S. v. S.A.P.
| Decision Date | 20 October 2022 |
| Docket Number | Court of Appeals No. 21CA0853 |
| Parties | L.S.S., Plaintiff-Appellee, v. S.A.P., Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Podoll & Podoll, P.C., Richard B. Podoll, Jacqueline E. Hill, Greenwood Village, Colorado, for Plaintiff-Appellee
Katherine Houston, Denver, Colorado; Davis, Wright, Tremaine, L.L.P., Thomas R. Burke, Thaila K. Sundaresan, San Francisco, California; for Defendant-Appellant
The Law Office of Steven D. Zansberg, Steven D. Zansberg, Denver, Colorado, for Amici Curiae Colorado Broadcasters Association and Colorado Press Association
The Zalkin Law Firm, P.C., Kristian Roggendorf, San Diego, California, for Amici Curiae National Crime Victim Law Institute and National Center for Victims of Crime
Opinion by JUDGE GOMEZ
¶ 1 In 2019, the General Assembly enacted a statute to address lawsuits aimed at stifling or punishing the exercise of the First Amendment rights to free speech and to petition the government, commonly known as strategic lawsuits against public participation (SLAPP). This case requires us to outline and apply the framework for considering special motions to dismiss under that anti-SLAPP statute, section 13-20-1101, C.R.S. 2022. In doing so, we expand upon the recent opinion by another division of this court in Salazar v. Public Trust Institute , 2022 COA 109M, 522 P.3d 242.
¶ 2 In this case, L.S.S. (father) asserted defamation and related claims against S.A.P. (mother) after she reported that he might be sexually abusing their five-year-old child. Mother appeals the trial court's denial of her special motion to dismiss those claims under the anti-SLAPP statute. Applying the framework we outline for considering such motions, we affirm the order and remand the case to the trial court for further proceedings.
¶ 3 Mother and father were in a romantic relationship for nearly ten years. They had a child together and separated two years later.
¶ 4 The separation was contentious, with the parties contesting various issues regarding the child in a domestic proceeding. In the course of that proceeding, mother expressed a desire to move back to her native Australia with the child.
¶ 5 The parties eventually entered into a settlement agreement, under which mother was the primary custodial parent, father had visitation rights, and mother agreed to forgo any attempt to relocate to Australia with the child in exchange for father's payment of $700,000 to help her buy a home in the Aspen area, where they lived. After father initially defaulted on the $700,000 payment, the parties agreed on a payment plan whereby he would pay the funds to mother over a period of several months.
¶ 6 Shortly after making his first payment to mother, father had some difficulty getting the child to go with him for his parenting time. He hadn't seen the child in a month due to an illness, and when he arrived at mother's home the child, then age five, ran under her bed.
¶ 7 Mother recorded a video as father tried to coax the child out from under the bed.1 In the video, father tells the child several times to come out, but she declines. Eventually, she comes out and jumps onto her bed. As she does so, father lifts the back of her dress and pats her behind. He then tells her to sit down so they can talk. She lies down on the bed, and he says, "When you misbehave, and you have your butt up in the air, someone might give you a spanking, huh." She squeals. He tries to engage her in play with a stuffed animal. She then gets off the bed and walks toward mother, who is standing just outside the door.
¶ 8 A few days later, mother recorded a second video. In it, the child points toward her vagina and says father tickles her there. The child then says, Mother asks, "Oh my goodness, Daddy tickles you there?" The child responds, "Uh huh." Mother asks, "On the front bottom?" and the child responds, "Uh huh."
¶ 9 The next day, mother told her therapist about the child's statements about tickling. Mother said that the child had come to her, asking to be tickled and pointing toward her vagina, and that when she responded, "Mommy doesn't tickle you there," the child replied, "Daddy does," prompting mother to grab her phone and record the interaction shown in the video.
¶ 10 As a mandatory reporter, the therapist notified the authorities, leading to criminal and child welfare investigations by the Aspen Police Department (APD) and the Pitkin County Department of Human Services (DHS), respectively. During the investigations, mother shared the videos and raised other concerns about father's care of the child. Father denied the allegations and suggested that mother might be coaching the child. A forensic interview with the child didn't disclose any abuse. Both agencies concluded that there was insufficient evidence to pursue the matter further.
¶ 11 After the agencies concluded their investigations, father filed this lawsuit against mother, asserting claims for defamation (libel/slander), knowingly making a false claim of child abuse, and extreme and outrageous conduct.2 The case was assigned to the same judge who had presided over the earlier domestic case.
¶ 12 Mother filed a special motion to dismiss under the anti-SLAPP statute. The trial court held a non-evidentiary hearing, after which it denied the motion. Following the two-step analysis California courts have applied to that state's anti-SLAPP statute, the court first concluded that mother's statements involved matters of public concern and, therefore, fell within the protections of the statute. Then, under the second step, the court determined that, while father's narrative wasn't "terribly persuasive," he had presented enough evidence to proceed with his claims.
¶ 13 Mother appeals the decision. She contends that the trial court correctly resolved the first step but applied the wrong standard and reached the wrong result in the second step. Father disagrees and seeks affirmance under either or both steps. We first set forth the standards for resolving motions under the anti-SLAPP statute and then address each step in turn.
¶ 14 A few decades ago, courts and legislatures began adopting measures to address a growing trend of SLAPP lawsuits. See George W. Pring & Penelope Canan, " Strategic Lawsuits Against Public Participation" ("SLAPPs"): An Introduction for Bench, Bar and Bystanders , 12 Bridgeport L. Rev. 937, 938-44, 960 (1992).
¶ 15 Among the earlier measures to address such suits was a framework that our supreme court established in Protect Our Mountain Environment, Inc. v. District Court , 677 P.2d 1361 (Colo. 1984) ( POME ). In POME , after an environmental group brought an unsuccessful action challenging a zoning decision in favor of a developer, the developer sued the group and its attorneys, claiming abuse of process and civil conspiracy. Id. at 1362-64. After the trial court declined to dismiss the developer's suit, the supreme court accepted jurisdiction and established what came to be known as the POME framework. Id. at 1362, 1368-69.
¶ 16 Under the POME framework, special standards apply to motions to dismiss where the plaintiff's claims are based on prior administrative or judicial activities and the defendant's motion invokes the First Amendment right to petition the government to redress grievances. Id. at 1368-69. Specifically, the motion is treated as one for summary judgment; and to withstand the motion, the plaintiff must show that the defendant's petitioning activities were not immunized from liability under the First Amendment because they (1) were "devoid of reasonable factual support" or "lacked any cognizable basis in law," (2) were brought primarily "to harass the plaintiff or to effectuate some other improper objective," and (3) "had the capacity to adversely affect a legal interest of the plaintiff." Id. at 1369. Over time, courts extended this framework to other circumstances involving "matters of public concern." Boyer v. Health Grades, Inc. , 2015 CO 40, ¶¶ 10–15, 359 P.3d 25.
¶ 17 The General Assembly codified and expanded the POME framework with the anti-SLAPP statute. § 13-20-1101. Like the POME framework, the statute provides a mechanism to dismiss nonmeritorious lawsuits infringing on First Amendment rights. See id. But it also provides additional relief beyond POME —for instance, by providing for the early filing and consideration of a special motion to dismiss, an automatic stay of discovery until the motion is decided, the recovery of attorney fees and costs by a defendant who prevails on such a motion, and a right to immediately appeal an order granting or denying the motion. § 13-20-1101(4)(a), (5) - (7).
¶ 18 The statute allows a person (usually a defendant) to file a special motion to dismiss "[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 state constitution in connection with a public issue." § 13-20-1101(3)(a). The trial court then "consider[s] the pleadings and supporting and opposing affidavits" to determine whether "the plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim." § 13-20-1101(3)(a)-(b).
¶ 19 We review de novo a district court's ruling on a special motion to dismiss. Salazar , ¶ 21. And, to the extent that our resolution of this appeal turns on interpretation of the anti-SLAPP statute, our review likewise is de novo. See id. at ¶ 14.
¶ 20 Because few cases have applied Colorado's anti-SLAPP statute, and because it closely resembles California's anti-SLAPP statute, we look to California case law for guidance in outlining the two-step process for considering a special motion to...
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