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Mother loses anti-SLAPP bid to dismiss ex-boyfriend’s defamation lawsuit

A ruling last week from the Colorado Court of Appeals will allow an Aspen man to pursue a defamation lawsuit against his ex-girlfriend for alleging he might have sexually molested their daughter.

By siding with a previous decision delivered by Pitkin County Judge Chris Seldin, the appellate court rejected the mother’s attempt to have the suit dismissed under Colorado’s anti-SLAPP statute enacted in 2019. SLAPP stands for strategic lawsuits against public participation; anti-SLAPP motions provide defendants a path to seek dismissal of litigation that interferes with their First Amendment rights.

The father’s defamation suit has been suppressed ever since it was filed in Pitkin County District Court in 2020, but the Court of Appeals’ order summarized the complaint: “In this case, (father) asserted defamation and related claims against (mother) after she reported that he might be sexually abusing their five-year-old child,” said the order. “Mother appeals the trial court’s denial of her special motion to dismiss those claims under the anti-SLAPP statute.”



The order was written by appellate Judge Christina Gomez. The two other judges on the appellate panel, Rebecca Freyre and Terry Fox, concurred with Gomez’s findings, according to the order.

The father’s defamation suit was filed over the woman’s statements to her therapist that he was possibly sexually abusing their daughter. The couple were in a relationship for 10 years, then broke it off two years after their daughter was born. The mother became the child’s primary custodial parent while the father had visitation rights. The mother said her daughter told her that the father had touched her in private areas, the Court of Appeals’ order said.




“As a mandatory reporter, the therapist notified the authorities, leading to criminal and child welfare investigations by the Aspen Police Department and the Pitkin County Department of Human Services respectively,” said the Court of Appeals’ order. “During the investigations, mother … 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.”

After the investigation, the father sued the mother for defamation, alleging she knowingly made a false claim about child abuse. In turn, the mother, who denied her claim was false, filed a special motion to dismiss the father’s lawsuit, citing anti-SLAPP legislation. Pitkin County Judge Seldin denied the motion, prompting the mother to appeal his decision.

Seldin had ruled the mother’s anti-SLAPP motion met the first step of the two-step analysis of California’s anti-SLAPP statute that Colorado replicated, according to the appellate court’s order.

“(Seldin) first concluded that mother’s statements involved matters of public concern and, therefore, fell within the protections of the statute,” the order said. “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.”

The Court of Appeals agreed with Seldin.

“In this case, the veracity of mother’s report is in dispute,” the ruling said. “Although father claims that mother fabricated her allegations and coached the child, mother disputes those claims. And while the investigating authorities didn’t find enough evidence to pursue criminal charges or other proceedings against father, there is no conclusive evidence establishing that mother made false reports. Therefore, we cannot say as a matter of law that her conduct was not protected, and we agree with the trial court that she satisfied the first step.”

The mother’s anti-SLAPP motion drew the attention of the Colorado Broadcasters Association and the Colorado Press Association, which through Denver-based First Amendment attorney Steve Zansberg filed a “friend of the court brief” in support of the mother appellant. Zansberg also agreed with the appellate court’s finding on the first step of analysis.

By email, he said Tuesday that “the organizations I represented are pleased that the Court of Appeals adopted the position they urged about how trial courts are to determine whether a libel plaintiff has demonstrated a reasonable likelihood of prevailing to overcome an anti-SLAPP motion.” 

It was the second prong, however, that didn’t satisfy the mother’s anti-SLAPP motion, according to the ruling of the appellate court, which also had to decide whether the husband’s claims had sufficient evidence to show the mother committed actual malice by making a false accusation.

A plaintiff can establish actual malice if the defendant “entertained serious doubts as to the truth of the statement or acted with a high degree of awareness of its probable falsity,” according to a ruling cited by the Court of Appeals. “(I)ll will and bad motive toward the plaintiff are not elements of actual malice.”

The court, however, noted there was evidence that the mother’s “’anger and hostility toward the plaintiff’ may serve as circumstantial evidence of actual malice,” and upheld Seldin’s ruling though it disagreed how he arrived to his conclusion on the second prong.

Zansberg said his clients did not take a position on whether that standard had been satisfied in this case, having not been privy to the trial court record. However, he said, he found it disconcerting that the Court of Appeals determined that plaintiff had met his burden rather than remanding for the trial court to make findings that it failed to make when it denied the anti-SLAPP motion.”

The appellate court’s order noted that the judges “recognize mother’s and the amici’s (friend of the court’s) concerns that allowing this case to move forward could embolden abusers to further victimize others through misuse of the judicial process and could discourage victims and their families from seeking help. But, at the same time, we must acknowledge the potential for false accusations and the right that someone who is falsely accused has to recover for the harm thereby caused.”

Lawyers for the mother and father could not be immediately reached for comment Tuesday.

rcarroll@aspentimes.com

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