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Gonzales v. Hushen.

2023 COA 87. No. 22CA0696. Defamation—Intentional Infliction of Emotional Distress—Anti-SLAPP Statute—Special Motion to Dismiss—Quasi-Judicial Proceedings—Absolute Immunity—Title IX Investigations.

September 28, 2023

Hushen and Weary (daughters) were classmates with Gonzales at Evergreen High School (EHS). Daughters alleged that Gonzales sexually harassed them at school, and 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. After the acquittal, the Jefferson County School District (JCSD) communicated with Gonzales regarding his readmittance to EHS and recission of the Title IX findings that led to his expulsion. JCSD then notified daughters that Gonzales might be permitted to return to EHS. Daughters’ mothers then sent emails to school officials expressing concerns about Gonzales’s potential return. Consequently, JCSD reopened its Title IX investigation, during which daughters and their mothers (collectively, defendants) filed a “Title IX supplement,” in which defendants reasserted some of their allegations. Gonzales later filed a complaint for defamation and intentional infliction of emotional distress, attaching multiple emails to his complaint and referencing the Title IX supplement. He also noted that he expected to uncover additional communications (the additional communications) through discovery. Defendants filed a special motion to dismiss under CRS § 13-20-1101 (anti-SLAPP (strategic lawsuit against public participation) motion), asserting that the statements at issue were protected activity under the statute. The trial court determined that there were 15 communications before it at that time, and it granted the anti-SLAPP motion as to communications 2, 4, and 12. The court also noted that it did not have copies of the additional communications, so it could not make findings as to anti-SLAPP or privilege concerning them. 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. The trial court did not make an anti-SLAPP ruling as to communications 1, 3, 5 through 9, and 11. The court denied defendants’ motion for reconsideration, but it construed defendants’ request for clarification as a motion for more definite statement, which it granted, ordering Gonzales to file an amended complaint. Gonzales timely filed his second amended complaint one day after defendants filed their notice of appeal.

On appeal, defendants argued that the trial court erred by ruling that the Title IX investigation was not a quasi-judicial proceeding and that the statements made in connection therewith were not absolutely privileged. The court of appeals held that, for a proceeding to be considered “quasi-judicial” for purposes of applying absolute immunity to party and witness statements, it must contain sufficient procedural safeguards to ensure reliability and fundamental fairness. The safeguards must allow for adversarial presentation and testing of the evidentiary facts. Courts assess whether the safeguards are sufficient according to the totality of the circumstances. Here, it is undisputed that there was no hearing; and there is no indication that Gonzales had the right or opportunity to call witnesses, cross-examine adverse witnesses, or review and respond to the statements and other evidence that JCSD reviewed in reaching its decision. Rather, the Title IX proceeding ended after the investigation phase without moving forward to anything that could be considered “quasi-judicial.” Considering the totality of the circumstances, the Title IX proceeding was not quasi-judicial for purposes of applying absolute immunity. Therefore, defendants weren’t entitled to absolute immunity for their statements.

Gonzales argued that the trial court erred by concluding that communications 2, 4, 12, and 15 were subject to a qualified privilege and that he was unable to rebut the qualified privilege because he did not establish actual malice. However, Gonzales is not required to establish actual malice at this stage of the proceedings to survive an anti-SLAPP motion. Rather, he must demonstrate a reasonable probability of proving that, at that time the communications were made, the speakers knew that Gonzales had not committed sexual misconduct or in fact had serious doubt as to the truth of the sexual misconduct allegations. Here, communications 2, 4, and 12, taken as true, establishes multiple inconsistencies in defendant daughters’ allegations of sexual misconduct and that defendant mothers witnessed at least some of those inconsistencies when they were elicited at the criminal trial. Further, Gonzales submitted evidence tending to demonstrate that defendant daughters bore ill will toward him. Accordingly, the court could not conclude, as a matter of law, that a reasonable juror would not be able to find that defendants knew the allegations were false or had serious doubt as to their truth when they made their statements. Further, although the court determined that Gonzales did not establish actual malice, it nevertheless did not dismiss his claims as to communication 13 because the communication itself contained evidence of “additional communications” that were not part of the anti-SLAPP motion. Because communication 13 doesn’t fall within the scope of the anti-SLAPP statute, the trial court’s analysis should have ended there, and it should have denied defendants’ motion.

The parties asserted, and the court agreed, that the trial court erred by failing to make an anti-SLAPP ruling as to communications 1, 3, 5 through 9, and 11.

Defendants further contended that the trial court erred by denying the anti-SLAPP motion based on the additional communications. However, before Gonzales can be required to show a reasonable likelihood of success as to the additional communications, defendants have the burden to show that the statements are within the anti-SLAPP statute’s scope. And because the trial court did not have copies of the additional communications, it could not assess whether defendants met that burden. Accordingly, the trial court did not err.

Defendants requested appellate attorney fees and costs. The court denied the request because almost all of defendants’ requested relief was denied. In addition, while the court reversed the portion of the trial court’s order declining to address communications 1, 3, 5 through 9, and 11, that relief was equally requested by Gonzales.

The court also denied Gonzales’s request for appellate attorney fees because he did not identify the legal and factual basis for his request.

The portion of the order concluding that the Title IX proceeding is not a quasi-judicial proceeding, and the portion of the order denying the special motion to dismiss as to communications 13 and 15, were affirmed. The portion of the trial court order granting the special motion to dismiss as to communications 2, 4, and 12 was reversed, and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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