Gonzales v. Hushen

540 P.3d 1268

2023 COA 88

2023 COA 87

Benjamin GONZALES, Plaintiff-Appellee and Cross-Appellant,

v.Ashley HUSHEN, Julie Hushen, Alexandra Weary, and Nicole Weary, Defendants-Appellants and Cross-Appellees.

Court of Appeals No. 22CA0696

Colorado Court of Appeals, Div. III.

Announced September 28, 2023

Jefferson County District Court No. 21 CV30468, Honorable Robert C. Lochary, Judge Carolyn Pelloux, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Sutton Booker P.C., Joel S. Babcock, Katie

B. Johnson, Lily E. Nierenberg, Denver, Colorado, for Defendant-Appellants and Cross-Appellees Ashley Hushen and Julie Hushen

Steven D. Zansberg, Denver, Colorado, for Defendants-Appellants and Cross-Appellees Alexandra Weary and Nicole Weary

Opinion by JUDGE LUM

¶ 1 In this action for defamation and intentional infliction of emotional distress, defendants—Ashley Hushen and Alexandra Weary (defendant daughters) and their mothers, Julie Hushen and Nicole Weary (defendant mothers)¹—appeal the trial court’s order partially granting and partially denying their special motion to dismiss under section 13-20-1101, C.R.S. 2023. Plaintiff, Benjamin Gonzales, cross-appeals. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I. Background

A. Underlying Facts, Complaint, and Anti-SLAPP Motion

¶ 2 Defendant daughters were classmates with Gonzales at Evergreen High School (EHS), a public high school in Jefferson County. Defendant daughters alleged that Gonzales sexually harassed them at school. The allegations resulted in a Title IX investigation that led to Gonzales’s expulsion from EHS. Gonzales was also tried as a juvenile on criminal charges relating to the allegations but was acquitted on December 20, 2019.

¶ 3 After acquittal, the Jefferson County School District (JCSD) communicated with Gonzales regarding re-admittance to EHS and recission of the Title IX findings that led to his expulsion.² JCSD then notified defendants that Gonzales might be permitted to return to EHS. Between February 20 and 28, 2020, defendant mothers sent several emails to school officials voicing concerns about Gonzales’s potential return.

¶ 4 On March 4, 2020, JCSD formally rescinded its prior Title IX finding due to Gonzales’s acquittal, but it also re-opened the Title IX investigation.³ On April 24, 2020, during the re-opened investigation, an attorney representing defendants prepared a "Title IX supplement," in which defendants reasserted some of their allegations. The attorney sent the Title IX supplement to the JCSD Title IX coordinator, apparently at the coordinator’s request.

¶ 5 Approximately one year later, Gonzales filed his complaint in the underlying matter for defamation and intentional infliction of emotional distress. Gonzales attached multiple February 2020 emails to his complaint. The complaint also referenced the Title IX supplement and noted that Gonzales expected to uncover additional communications through the discovery process.

¶ 6 Defendants jointly filed a special motion to dismiss under section 13-20-1101 (anti-SLAPP motion), asserting that the statements at issue were protected activity under the statute. Defendants additionally asserted that, because the statements were made in connection with a Title IX investigation—which they alleged to be a quasi-judicial, proceeding—the statements were absolutely privileged and could not form the basis for civil liability. Alternatively, defendants argued that, even if the statements were not absolutely privileged, they were subject to a qualified privilege because they addressed a matter of public concern and were made between parties with a legitimate common interest in the subject matter. Further, defendants asserted that Gonzales could not produce the evidence of "actual malice" necessary to defeat the qualified privilege. Therefore, contended defendants, Gonzales could not meet his burden to show he had a reasonable likelihood of prevailing on the merits, To their motion, defendants attached three additional communications within the relevant timeframe, including the Title IX supplement.

¶ 7 Gonzales responded that the emails and Title IX supplement were not protected activity under section 13-20-1101 because they were made "not in furtherance of [defendants’] right to participate but as a defamatory campaign … designed to mislead authorities to punish [him] for no credible reason." He also contended that he could show a reasonable likelihood that he would prevail on the merits; that the proceeding was not "quasi-judicial" because it did not afford him any due process; and that, in any event, the emails that preceded the reopened Title IX investigation were not sufficiently connected to the proceeding to merit the application of absolute privilege. He also contended that he could demonstrate that defendants made their statements with actual malice.

B. Anti-SLAPP Order

¶ 8 The trial court determined that there were fifteen communications before it at the time it issued its order on defendants’ anti-SLAPP motion (anti-SLAPP order):

Title	Type	Date
Communication 1	E-mail	2/20/2020
Communication 2	E-mail	2/20/2020
Communication 3	E-mail	2/21/2020
Communication 4	E-mail	2/22/2020
Communication 5	E-mail	2/25/2020
Communication 6	E-mail	2/25/2020
Communication 7	E-mail	2/25/2020
Communication 8	E-mail	2/26/2020
Communication 9	E-mail	2/26/2020
Communication 10	E-mail	2/26/2020
Communication 11	E-mail	2/27/2020
Communication 12	E-mail	2/28/2020
Communication 13	E-mail	2/28/2020
Communication 14	Letter	3/4/2020
Communication 15	Letter (Title IX Supplement)	4/24/2020

¶ 9 Of these, the trial court analyzed only communications 2, 4, 12, 13, and 15 (the analyzed communications). The court determined that the remaining listed communications were "not relevant to the analysis presently before the Court."

¶ 10 Of the analyzed communications, the trial court determined as follows:

• communications 2, 4, 12, and 15 were protected activity under section 13-20-1101;

• communication 13 was not protected activity;

• absent the application of any privilege, Gonzales demonstrated a reasonable likelihood of prevailing on his claims as to communications 2, 4, 12, and 15;

• the Title IX investigation was not a quasi-judicial proceeding and, therefore, none of the communications was absolutely privileged; and

• communications 2, 4, 12, 13, and 15 were subject to the qualified "common interest" privilege, and Gonzales was unable to refute the privilege with proof of actual malice,

¶ 11 Based on these conclusions, the court granted the anti-SLAPP motion as to communications 2, 4, and 12, However, in addition to the fifteen listed communications, the court found that Gonzales’s complaint referred to "additional defamatory communications" (the additional communications). Because the court did not have copies of those additional communications, it could not make findings as to anti-SLAPP or privilege. However, it ruled that the existence of the additional communications was supported by the evidence, including Gonzales’s affidavit and statements contained within communications 13 and 15. The court therefore denied the remainder of the anti-SLAPP motion and ruled that, with the exception of communications 2, 4, and 12, Gonzales’s claims could proceed.⁴

C. Motion to Reconsider and Order

¶ 12 Following the anti-SLAPP order, defendants filed a motion for partial reconsideration or clarification relating to the additional communications. Defendants argued as follows:

• Gonzales’s first amended complaint failed to adequately plead the additional communications and did not state a plausible claim for relief relating there to;

• by denying the anti-SLAPP motion based on those communications, the trial court erred by shifting the burden of proof to state a plausible claim from Gonzales to defendants; and

• the complaint did not provide defendants with sufficient notice of the additional communications, and, therefore, defendants were unable to assert all available defenses.

¶ 13 Defendants requested that the trial court revise its order to dismiss Gonzales’s complaint as to the additional communications for failure to state a claim. Alternatively, defendants requested that the court clarify which additional communications were adequately pleaded such that they required defendants to respond when they filed their answer.

¶ 14 In its order on the motion for reconsideration, the trial court ruled that because defendants filed the anti-SLAPP motion, they bore the initial burden to make a prima fade showing that the communications arose from protected activity. And without a copy of the additional communications, the court ruled that defendants could not meet that burden. The court declined to address defendants’ argument that the additional communications were inadequately pleaded because defendants never previously raised those contentions under C.R.C.P. 12(b)(5). Finally, the court construed defendants’ request for clarification as a motion for more definite statement, which it granted. The court ordered Gonzales to file an amended complaint on or before April 29, 2022.

¶ 15 Gonzales timely filed his (second) amended complaint on April 29, one day after defendants filed their notice of appeal.

D. Summary of Contentions on Appeal

¶ 16 On appeal, defendants assert that the trial court erred by (1) ruling that the Title IX investigation was not a quasi-judicial pro- ceeding and that the statements made in connection therewith were not absolutely privileged; (2) denying the anti-SLAPP motion based on additional communications that weren’t adequately pleaded in the amended complaint; and (3) failing to make an anti-SLAPP ruling as to communications 1, 3, 5-9, and 11.

¶ 17 Gonzales contends that the trial court erred by (1) ruling that he did not establish actual malice and therefore concluding that communications 2, 4, 12, 13, and 15 were privileged; and (2) failing to make an anti-SLAPP ruling as to communications 1, 3, 5-9, and...