Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

L.S.S. v. S.A.P.

2022 COA 123. No. 21CA0853. Anti-SLAPP Statute—Special Motion to Dismiss—Defamation—False Claim of Child Abuse—Extreme and Outrageous Conduct.

October 20, 2022

Mother and father had a child together and separated two years later. The parties contested various issues regarding the child in a domestic proceeding but eventually entered into a settlement agreement, under which mother was the primary custodial parent and father had visitation rights. Mother subsequently reported to her therapist that father might be sexually abusing the child. The therapist notified authorities, and criminal and child welfare investigations ensued. Ultimately, the investigating agencies concluded that there was insufficient evidence to pursue the matter further. Father then sued mother, asserting claims for defamation (libel/slander), knowingly making a false claim of child abuse, and extreme and outrageous conduct. Mother filed a special motion to dismiss under CRS § 13-20-1101, which addresses strategic lawsuits against public participation (the “anti-SLAPP” statute). The trial court denied the motion.

On appeal, mother argued that the trial court applied the wrong standard and reached the wrong result in the second step of the two-step anti-SLAPP analysis. The anti-SLAPP statute allows a person to file a special motion to dismiss a “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States constitution or the state constitution in connection with a public issue.” CRS § 13-20-1101(3)(a). Under the two-step process for considering a special motion to dismiss, the court first determines whether the defendant made a threshold showing that the conduct underlying the plaintiff’s claim falls within the scope of the anti-SLAPP statute. If a claim meets this test, the court then reviews the pleadings and affidavits to determine whether the plaintiff established a reasonable likelihood of prevailing on the claim. Here, mother satisfied the first step by establishing that father’s claims arise from acts in furtherance of her right of petition or free speech in connection with a public issue. As to step two, to prevail on his defamation claim, father must, among other things, establish actual malice by clear and convincing evidence. To withstand a special motion to dismiss in these circumstances, he must establish a probability that he will be able to produce clear and convincing evidence of actual malice at trial. Here, while the trial court applied the wrong standard on the issue of actual malice, it properly drew all inferences from the evidence in father’s favor and determined that he had provided sufficient evidence of actual malice to withstand the special motion to dismiss.

Lastly, the parties agreed that father’s claims for knowingly making a false claim of child abuse and for extreme and outrageous conduct are subject to the same constitutional standards as the defamation claim and are thus ancillary to that claim. Further, mother didn’t raise any separate reasons why the other two claims cannot proceed. Accordingly, these claims also survive the special motion to dismiss.

The order was affirmed and the case was remanded for further proceedings.

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

Back to the From the Courts Page