Rosenblum v. Budd

538 P.3d 354

2023 COA 72

Steven ROSENBLUM, Plaintiff-Appellee,

v.Eric BUDD, Katie Farnan, Ryan Welsh, Mark Van Akkeren, Sarah Dawn Haynes, and Boulder Progressives, a Colorado nonprofit organization, Defendants-Appellants.

Court of Appeals No. 22CA0393

Colorado Court of Appeals, Division IV.

Announced August 3, 2023

Brownstein Hyatt Farber Schreck, LLP, Stanley L. Garnett, Christopher O. Murray, Sean S. Cuff, Denver, Colorado, for Plaintiff-Appellee

Benezra & Culver, P.C., John A. Culver, Robert Goodwin, Denver, Colorado; Maxted Law, LLC, David Maxted, Denver, Colorado, for Defendant-Appellant Eric Budd

Killmer, Lane & Newman, LLP, Thomas Kelley, Darold W. Killmer, Mari Newman, Andy McNulty, Denver, Colorado, for Defendants-Appellants Katie Farnan, Ryan Welsh, Mark Van Akkeren, Sarah Dawn Haynes, and Boulder Progressives

Opinion by JUDGE FOX

¶ 1 In this anti-SLAPP case, defendant Eric Budd and Katie Farnan, Ryan Welsh, Mark Van Akkeren, Sarah Dawn Haynes, and Boulder Progressives (the BPO Defendants) appeal the district court's denial of their special motions to dismiss the complaint of plaintiff, Steven Rosenblum, for misappropriation, defamation, and civil conspiracy.¹ We conclude that Rosenblum established a reasonable probability of success at trial on his misappropriation and defamation claims against Budd but failed to do so on his civil conspiracy claim against Budd and the BPO Defendants.

¶ 2 Addressing a matter of first impression, we conclude that a partially prevailing defendant on an anti-SLAPP motion filed pursuant to section 13-20-1101(3)(a), C.R.S. 2022, must be considered a prevailing party for purposes of attorney fees and costs unless the results of the partially successful motion were so insignificant that the defendant did not achieve any practical benefit from bringing the motion. Pursuant to C.A.R. 39.1, we remand for the district court to determine whether Budd is a partially prevailing defendant, to what extent Budd's partial appellate success — if any — warrants an apportionment of fees, and the reasonableness of his appellate fees.

¶ 3 We also conclude that Rosenblum failed to establish a reasonable probability of success at trial against the BPO Defendants and instruct the district court to award them reasonable appellate attorney fees and costs.

¶ 4 Thus, we affirm in part, reverse in part, and remand for further proceedings.

I. Background

¶ 5 This case arises from a local political candidate's suit against opposing political activists alleged to have "orchestrated a smear campaign" attacking his personal reputation.

A. Factual History

¶ 6 Rosenblum is a Boulder resident and a member of Safer Boulder, a community group that organized around public safety and housing issues. Rosenblum ran for a seat on Boulder's City Council in 2021. Boulder Progressives (BPO) is a local advocacy group that adopted opposing stances on homelessness and public safety. All defendants either were or remain members of BPO.

¶ 7 As a basis for his claims against the BPO Defendants and Budd, Rosenblum alleged the following facts. In September 2020, an unidentified John Doe published, on a blog called Safer Leaks, screenshots of comments made by members of Safer Boulder. Doe apparently had access to Safer Boulder's internal Slack channel² and publicized distasteful comments contained therein. For example, members of Safer Boulder proposed allowing bears and mountain lions to attack encampments of unhoused people, using rubber bullets or fire hoses to disperse encampments, and restraining those who attempt to film police and abandoning them near buckets of feces. The Safer Leaks blog made those originally private comments public.

¶ 8 Rosenblum denied responsibility for moderating the Slack channel and claimed that many comments were made before he was added to the channel. But Rosenblum admitted making some of the Slack channel comments published on the Safer Leaks blog, saying, "I stand by things I said and I would say them again." Those comments included the following:

• (Referring to a City Council member and her personal Twitter account) "I'm half convinced she's a Russian or Chinese bot trying to sow discord (like 70% of Twitter)."

• (Referring to an online request for support in opposing a sweep of an encampment) "SAFE sounding the call for backup for the Anal Wizard."³

• (In response to another member's statement comparing unhoused people to rats) "Wasn't someone supposed to chat with [the member] about word choice?"

¶ 9 The Safer Leaks blog contained links to subpages with separate profiles dedicated to certain Safer Boulder members. One subpage was dedicated to Rosenblum and attributed to him comments from an anonymous Reddit account called /u/AurochForDinner. /u/AurochForDinner made the following statements on Reddit:

• "We need to make life as miserable as possible for [unhoused people]."

• "[Transients] need to be treated like the filth that they are. The real homeless seek help and get a lot of it. These are travelers who come here to destroy our environment and city."

• "They aren't homeless, they are vagrants who choose to travel to Boulder to make our environment so filthy and filled with needles that kids can't use parks. ... Are you getting the message yet that we are sick of this filth?"

• (In response to an online request that residents wear masks on trails and bike paths) "If it bothers you stay off the paths and trails."

• (In response to an observation that teachers were unwilling to teach in person during the COVID-19 pandemic) "Then they should be dismissed. The schools are operating out of fear ...."

¶ 10 Rosenblum has no connection to the /u/AurochForDinner Reddit account and did not make the statements falsely attributed to him.

¶ 11 On July 20, 2021, Rosenblum participated in a filmed interview with several community organizations regarding his upcoming candidacy for City Council. During the interview, Budd questioned Rosenblum's connection to Safer Boulder and the leaked Slack and Reddit comments. Rosenblum denied writing the Reddit comments but took responsibility for the Slack comments. During Budd and Rosenblum's colloquy, Budd said, "I agree that Reddit account is not you."

¶ 12 Budd later explained that, in making the foregoing admission, he was only trying to gain Rosenblum's trust and glean more information from him about the Slack comments, notwithstanding his claimed subjective belief that Rosenblum "could easily be /u/AurochForDinner." But the record reveals that Budd had initiated an email exchange with Doe, the creator of the Safer Leaks blog, almost two weeks earlier — on July 8, 2021 — asking whether Doe could "provide sufficient evidence" for the claim that Rosenblum was /u/AurochForDinner.

¶ 13 Shortly after the interview, Budd created a Twitter account in Rosenblum's name.⁴ Budd does not deny creating the impersonation account. The name associated with the account was "Steven Rosenblum," and the account's handle was "@steveforboulder." Budd added a link to the Safer Leaks blog in the account's bio. Rosenblum also discovered an impersonation Instagram account in his name and a website under the domain stevenrosenblumforboulder.com that linked directly to the Safer Leaks blog.

¶ 14 On August 5, 2021, Doe responded to Budd's July 8 inquiry regarding the assumed connection between Rosenblum and /u/AurochForDinner, saying that the attribution was based on "many coincidences." Doe agreed to conduct additional research on the connection and asked Budd if he had any relevant information. The same day, Budd replied,

I don't have much to *invalidate* the connection. Although I also don't see anything direct that links the two, and that makes me uncomfortable since the Reddit account is much more aggressive and toxic than what I've seen from [Rosenblum] that can be directly attributed. Of course [Rosenblum] denied the Reddit account directly to me when I asked him.

¶ 15 On August 11, 2021, the BPO Defendants widely circulated a letter opposing Rosenblum's candidacy via email and blog. The letter contained a link to the Safer Leaks blog, copied several of the leaked screenshots from the blog, and provided analysis on Rosenblum's fitness for office. The letter contained the following disclaimer about the /u/AurochForDinner Reddit comments:

It's important to note that the site linked above contains some screenshots from a Reddit account that Boulder Progressives agrees is not Steven Rosenblum. However, the content of the leaked Slack chats ... is what the focus of this writing is about. It's up to the public to determine whether or not Steven Rosenblum wrote these Slack posts ... whether he stands by them, and if a candidate with such positions should be elected to city council.

¶ 16 Later that day, Better Boulder — an organization of which Budd was a member — held a meeting to discuss whether it would endorse Rosenblum's candidacy. Budd raised the BPO letter at the meeting, and Better Boulder opted not to endorse Rosenblum. Haynes, a BPO Defendant, sent the letter to the local chapter of the Sierra Club shortly before it met to discuss endorsing Rosenblum; the chapter also decided not to endorse him.

¶ 17 On August 17, 2021 — approximately a week after the BPO Defendants circulated their letter — Doe removed the comments made by /u/AurochForDinner from the Safer Leaks blog, explaining on the Rosenblum subpage that Doe was no longer "confident in the connection" between the anonymous Reddit user and Rosenblum. Doe also emailed the same to Budd.

¶ 18 Budd left the impersonation Twitter account active until September. Rosenblum ultimately lost the election by less than one percentage point.

B. Procedural History

¶ 19 On September 22, 2021, Rosenblum filed a complaint alleging that Budd and Doe had defamed him and misappropriated his name and likeness. Rosenblum also alleged that all defendants engaged in a civil conspiracy against him.

¶ 20 On October 15, 2021, the BPO Defendants filed a special motion to...