Polak v. Ramirez-Diaz

1

2021 Vt Super 081702

KISTINA J. POLAK and STEPHEN M. POLAK, Plaintiffs v. FELIPE RAMIREZ-DIAZ and YESICA SANCHEZ DE RAMIREZ, Defendants.

No. 21-CV-00594

Superior Court of Vermont, Civil Division, Franklin Unit

August 17, 2021

DECISION ON DEFENDANTS' SPECIAL MOTION TO STRIKE

Robert A. Mello, Superior Judge.

This matter is before the Court on the Special Motion to Strike filed by Defendants Felipe Ramirez-Diaz and Yesica Sanchez de Ramirez pursuant to 12 V.S.A. § 1041. Plaintiffs Kristina Polak and Stephen Polak initially filed a Complaint against Defendants alleging one count of defamation against Ms. Sanchez, and one count of defamation, one count of intentional infliction of emotional distress, and one count of malicious prosecution against both Defendants. A hearing was held on the special motion to strike on June 16, 2021. At that time, the Court also granted Plaintiffs' Motion to Amend as unopposed. Plaintiffs are represented by Attorney Robert Kaplan. Defendants are pro se, but Attorney Erika Johnson entered a limited appearance on their behalf for the sole purpose of filing, and attending any hearing related to, the Special Motion to Strike.

Background

The origins of this complaint appear to be rooted in a property dispute between neighbors that has since escalated out of control. In the interest of brevity, the Court will not detail the intricacies of this dispute but will instead focus on the conduct directly underlying the Amended Complaint. Plaintiffs allege that since the relationship between the parties deteriorated, the Defendants have made false allegations against them to government authorities. The first instance of these alleged false allegations occurred in 2018 when Ms. Sanchez reported to Saint Albans police that Mr Polak had assaulted her by pushing her to the ground while holding her young child. After the alleged assault, Ms Sanchez was seen at Northwestern Medical Center, where it was documented that she had mild redness on her thigh, apparently from falling. Ms. Sanchez's report to police did not result in any criminal charges against Mr. Polak.

The next complained-of incident also occurred in 2018. At that time, Plaintiff Ms. Polak allegedly threatened Defendants with a gun, which Defendants again reported to Saint Albans police. Although again no criminal charges were filed, the matter was referred to the Franklin County State's Attorney, who filed with the Court a Petition for Extreme Risk Protection Order ("ERPO") against Ms. Polak. A Temporary ERPO was granted and resulted in law enforcement seizing Ms. Polak's firearms. After two hearings, however, the Court denied the ERPO, citing an insufficient amount of credible evidence that the weapon was actually pointed at Defendants.

Around the same time, Defendants also filed a Complaint for Order Against Stalking ("Stalking Order") against Plaintiffs based in part on the above incidents. Temporary Stalking Orders were granted as to both Plaintiffs, but were later vacated, and permanent orders were denied. Defendants described both incidents in both the supporting affidavits filed with the Complaint and their testimony at the Stalking Order hearings. Again, the Court found that there was insufficient credible evidence presented to meet the heightened standard required to grant a Permanent Stalking Order.

Finally, Plaintiffs additionally allege that Defendants repeated the above accusations -that Mr. Polak pushed Ms. Sanchez and that Ms. Polak threatened the Defendants with a gun - to neighbors and members of the community. They also allege that Defendants have accused them of being racist,^[1] and have also repeated these accusations to neighbors and members of the community. Although there are substantial pleadings related to the actual incidents, the ERPO proceedings, and the Stalking Order Proceedings, there are few specific details related to the statements allegedly made to neighbors and community members, so it is unclear when these statements were made, what was said, and to whom specifically the statements were made.

Discussion

12 V.S.A. § 1041 is Vermont's equivalent to an anti-strategic lawsuit against public participation ("anti-SLAPP") statute. When enacting the anti-SLAPP statute, the Vermont Legislature intended to protect citizens from facing retaliatory litigation after exercising their rights to free speech and to petition the government concerning public interest matters. Felis v Downs Rachlin Martin PLLC, 2015 VT 129, ¶ 48, 200 Vt. 465. It allows a defendant to file a special motion to strike "in an action arising from the defendant's exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution." 12 V.S.A. § 1041(a). The Court is required to grant a special motion to strike unless the plaintiff can demonstrate that (1) "the defendant's exercise of his or her right to freedom of speech and to petition was devoid of any reasonable factual support and any arguable basis in law" and (2) "the defendant's acts caused actual injury to the plaintiff." 12 V.S.A. § 1041(e)(1). The Court "shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based" when making its determination. 12 V.S.A. § 1041(e)(2).

I. Protected or Unprotected Activity

The first step in analyzing an anti-SLAPP motion to strike is to determine whether the, action is based on the defendant's exercise of their rights to free speech or to petition the government in connection with a public issue. According to the Legislature, this includes

(1) any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(3) any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or

(4) any other statement or conduct concerning a public issue or an issue of public interest which furthers the exercise of the constitutional rights of freedom of speech or the constitutional right to petition the government for redress of grievances.

12 V.S.A. § 1041 (i). The use of the word "includes" preceding the list in this subsection indicates that this is not exhaustive.

The conduct that forms the basis of Plaintiffs' Amended Complaint can be divided into, three general categories: (1) statements that Defendants made to police; (2) complaints and statements Defendants made to the Court; and (3) statements that Defendants made to Plaintiffs' neighbors and fellow community members. Because it's possible that the complaint is based on both protected and unprotected conduct, we must first address what impact, if any, the inclusion of unprotected conduct in the complaint has on the Motion to Strike.

The Vermont Supreme Court has not had the opportunity to address whether a cause of action containing allegations of both protected and unprotected conduct would be subject to a special motion to strike. Courts in California, which has an anti-SLAPP statute similar to 12 V.S.A. § 1041, see Cal. Civ. Proc. Code § 425.16, have had the opportunity to address this, however. "A mixed cause of action is subject to [the anti-SLAPP statute] if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity." Salma v. Capon, 161 Cal.App.4th. 1275, 1287-88 (Cal.Ct.App. 1st Dist. 2008); see also Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal.App.4th 294, 308 (Cal.Ct.App. 2nd Dist. 2001) ("[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one 'cause of action.'") Massachusetts courts have reached a similar conclusion. See Duracraft Corp. v. Holmes Prod. Corp., 691 N.E.2d 935, 943 (1998), holding modified by Blanchard v. Steward Carney Hosp., Inc., 75 N.E.3d 21 (2017) ("Because the Legislature intended to immunize parties from claims 'based on' their petitioning activities, we adopt a construction of 'based on' that would exclude motions brought against meritorious claims with a substantial basis other than or in addition to the petitioning activities implicated"). This is also supported by the common law. See 123 Am. Jur. Proof of Facts 3d 341 (2021) ("When a pleading contains allegations referring to both protected and nonprotected activity, it is the principal thrust or gravamen of the plaintiffs cause of action that determines whether a special motion to strike a complaint under the anti-SLAPP statute applies."). Based on this, even if Plaintiffs' Amended Complaint includes allegations of both protected and unprotected conduct, Defendants' Motion to Strike may still be granted if it is determined that the complaint is primarily based on the protected conduct.

a) Statements Made to Police

Plaintiffs first complain of reports that Defendants made to law enforcement about the incident in which Mr. Polak allegedly pushed Ms. Sanchez to the ground and the incident in which Ms. Polak allegedly threatened Defendants with a gun. Defendants' reports to police are clearly within the scope of conduct protected by 12 V.S.A. § 1041. As discussed above, the Legislature has stated that, in the context of 12 V.S.A. § 1041, "the exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress" includes "any written or oral...