Anderson v. Senthilnathan

540 P.3d 1248

2023 COA 88

2023 COA 88

Auontai "Tay" ANDERSON, Plaintiff-Appellant and Cross-Appellee,

v.Jeeva SENTHILNATHAN, Defendant-Appellee and Cross-Appellant,andBlack Lives Matter 5280, a Colorado non-profit organization; Amy Brown; and Mary Katherine Brooks-Fleming; Defendants-Appellees.

Court of Appeals No. 22CA0858

Colorado Court of Appeals, Div. III.

Announced September 28, 2023

City and County of Denver District Court No. 21CV33673, Honorable David H. Goldberg, Judge

Issa Israel Law Firm, Issa Israel, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee

Jeeva Senthilnathan, Pro Se

Richards Carrington, LLC, Todd E. Mair, Elliot J. Heaven, Denver, Colorado, for Defendants-Appellees Black Lives Matter 5280 and Amy Brown

Kishinevsky & Raykin, LLC, Igor Raykin, Michael Nolt, Aurora, Colorado, for Defendant-Appellee Mary Katherine Brooks-Fleming

Opinion by JUDGE LUM

¶ 1 This appeal concerns a district court order addressing three special motions to dismiss filed pursuant to section 13-20-1101, C.R.S. 2023. Plaintiff, Auontai "Tay" Anderson, appeals the portion of the order granting the motions to dismiss filed by defendants Black Lives Matter 5280 (BLM),¹ Amy Brown, and Mary Katherine Brooks-Fleming. Defendant Jeeva Senthilnathan cross-appeals the portion of the order denying her special motion to dismiss.

¶ 2 We affirm the portions of the order dismissing Anderson’s claims against BLM and Brown and declining to dismiss Anderson’s claims against Senthilnathan. We affirm in part and reverse in part the portion of the order dismissing Anderson’s claims against Brooks-Fleming. And we remand the case for further proceedings.

I. Background

¶ 3 At various times in 2021, while Anderson served as an elected Director on the Board of Education for Denver Public Schools (DPS), BLM and Brown,² Brooks- Fleming, and Senthilnathan published separate statements alleging that Anderson had sexually assaulted one or more people. Each of the defendants was familiar with Anderson through participation in community polities.

¶ 4 An investigation commissioned by DPS was unable to substantiate the allegations of sexual assault raised by Brooks-Fleming and by a third party who had allegedly reported her assault to BLM. The results of the investigation were released before Senthilnathan made her statements.

¶ 5 Anderson brought claims against each defendant for (1) defamation; (2) defamation per se; (3) civil conspiracy; (4) "extreme and outrageous conduct [and] intentional infliction of emotional distress"; (5) "tortious interference with prospective business relationship"; (6) aiding and abetting defamation; (7) aiding and abetting extreme and outrageous conduct; and (8) aiding and abetting tortious interference. The complaint also sought preliminary and permanent injunctive relief.

¶ 6 The defendants each filed special motions to dismiss under Colorado’s anti-SLAPP statutes, section 13-20-1101.³ The district court concluded that all statements at issue constituted petitioning activity protected by the statute and pertained to an issue of public concern. It granted BLM’s and Brooks-Fleming’s special motions to dismiss because it concluded that Anderson did not establish a reasonable likelihood* that he could prove, by clear and convincing evidence, that their statements were made with actual malice. The court dismissed the remaining claims against BLM and Brooks-Fleming as derivative of the defamation claims. The court denied Senthilnathan’s special motion to dismiss because it concluded that Anderson did establish a reasonable likelihood that he would prevail as to the claims against her. Anderson appeals, and Senthilnathan cross-appeals.

¶ 7 First, we review the anti-SLAPP framework and defamation principles applicable to all parties’ claims. Next, we address Anderson’s direct appeal, examining whether BLM’s and Brpoks-Flemihg’s statements were protected activity and whether Anderson can demonstrate a reasonable likelihood of prevailing on his defamation claims against them. Finally, we turn to the crossappeal to determine whether Anderson established a reasonable likelihood of prevailing on his defamation claim against Senthilnathan.

II. Standard of Review and Applicable Law

A. Anti-SLAPP Statute

[1] ¶ 8 We review a district court’s ruling on an anti-SLAPP motion de novo. L.S.S. v. S.A.P., 2022 COA 128, ¶ 19, 523 P.3d 1280; Salazcur v. Pub. Tr. Inst, 2022 COA 109M, ¶ 21, 522 P.3d 242.

¶ 9 The purpose of Colorado’s anti-SLAPP statute is to "safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government … and, at the same time, to protect the rights of persons to file meritorious lawsuits for demonstrable injury," § 13-20-1101(1)(b); see also L.S.S,, ¶¶ 14–18; Salazar, ¶ 11. To balance these interests, the statute provides a mechanism to "make an early assessment about the merits" of a law-suit brought in response to a defendant’s protected petitioning or speech activity. Salazar, ¶12.

¶ 10 To that end, a defendant may file a special motion to dismiss early in a case, arid the court must evaluate the special motion through a two-step process. § 13-20-1101(3)(a); L.S,S., ¶¶ 20–24. First, the court must determine whether the defendant has made a threshold showing that the plaintiffs claims fall within the scope of the statute; that is, whether the claims arise from the defendant’s exercise of free speech or right to petition in connection with a public issue. L.S.S., ¶ 21. Second, if the defendant meets that threshold, the burden shifts to the plaintiff to establish a reasonable likelihood of prevailing on the claim. § 13-20-1101(3)(a); LS.S,, ¶ 22. If the plaintiff fails, to satisfy this burden, then the court must grant the special motion to dismiss. § 13-20-1101(3)(a); Creek- side Endodontics, LLC v. Sullivan, 2022 COA 145, ¶ 23, 527 P.3d 424.

[2] ¶ 11 In its evaluation at the second step, the court applies a, "summary judgment-like" procedure whereby it reviews the pleadings, affidavits, and evidence submitted by both sides to determine whether the plaintiff has met the burden. L.S.S., ¶¶ 22–23. A court "‘does not weigh evidence or resolve conflicting factual claims’ but simply ‘accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.’" Id. at ¶ 23 (quoting Baral v. Schnitt, 1 Cal.5th 376, 205 Cal.Rptr.3d 475, 376 P.3d 604, 608 (2016)); see also § 13-20-1101(3)(b).

B. Defamation

[3] ¶ 12 The elements of defamation are (1) a defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by the publication.

Lawson v. Stow, 2014 COA 26, H 15, 327 P.3d 340 (quoting Williams v. Disi Ct., 866 P.2d 908, 911 n.4 (Colo. 1993)).

[4, 5] ¶ 13 When the, defamatory statement involves a matter of public concern, the plaintiff faces heightened standards:

1. The plaintiff must prove the statement’s falsity by clear and convincing evidence, rather than by a mere preponderance.

2. The plaintiff must prove by clear and convincing evidence that the speaker published the statement[ ] with actual malice.

3. The plaintiff must establish actual damages, even if the statement is defamatory per se.

L.S.S., ¶ 36. "[T]he clear and convincing [evidence] standard requires proof that a fact is ‘highly probable and free from serious or substantial doubt.’" Creekside, ¶ 36 (quoting Destination Maternity v. Burren, 2020 CO 41, ¶ 10, 463 P.3d 266).

[6–8] ¶ 14 "A statement is published with actual malice if it is published with actual knowledge that it was false or with reckless disregard for whether it was true." L.S.S., ¶ 40. A plaintiff can show actual malice by proving that the defendant in fact "entertained serious doubts as to the truth of the statement or acted with a high degree of awareness of its probable falsity." Id, (quoting Fry v. Lee, 2013 COA 100, ¶ 21, 408 P.3d 843). To survive an anti-SLAPP motion, the plaintiff must "establish a probability that they will be able to produce clear and convincing evidence of actual malice at trial." Id. at ¶ 41.

III. BLM’s and Brooks-Fleming’s Statements

A. Additional Facts

¶ 15 In March 2021, BLM published the following statement on multiple social media platforms:

In late February, a woman came forward to BLM5280 alleging that Director Tay Anderson is the perpetrator of her sexual assault. At the request of the alleged survivor, we are publicly sharing this information in hopes of ensuring her and all of our safety and wellbeing. We trust that our supporters and community partners, as well as Dir. Anderson’s supporters and community partners, will be mindful of the struggle in outing oneself as a survivor of sexual assault: particularly when bringing allegations forth against a person in a position of power and influence. As such, the alleged survivor has requested to remain anonymous at this time. Please respect her boundaries.

At present, the alleged survivor’s only requests of Dir. Anderson are that he issue a public apology and seek help from a licensed professional with relevant expertise. The alleged victim’s requests are in alignment with restorative justice—one of our guiding values as a chapter. Bear in mind that although these allegations have not gone through a formal, legal process, BLM5280 is fiercely committed to protecting, uplifting, and believing Black women, decidedly as it relates to sexual violence. When we say protect Black women this must entail calling in those who have allegedly caused harm, including elected offi- cials. Until Dir. Anderson has accounted for himself in these ways, he will not be welcome to share space with BLM5280 physically or on any of our platforms.

¶ 16 Following BLM’s...