Metropolitan News-Enterprise


Monday, January 14, 2013


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Assault Allegation Held Protected by Anti-SLAPP Law


By a MetNews Staff Writer


Allegations of sexual assault constitute protected conduct under the anti-SLAPP law, the First District Court of Appeal has ruled.

Div. Two Friday certified for publication a Dec. 18 opinion in which the panel affirmed an order striking Michael Comstock’s cross-complaint for defamation in Lisa Aber’s suit against Comstock and the company where the plaintiff and defendant both worked.

Aber filed a complaint in San Francisco Superior Court for for sexual harassment, sexual battery and intentional infliction of emotional distress. She alleged that Comstock and co-defendant James Cioppa, who supervised Aber in the San Francisco office of the international publishing firm Wolters Kluwer, tried to get her drunk and attempted to have sex with her following a business-related social gathering in June 2010.

Comstock alleged in his cross-complaint that he did nothing improper and that Aber falsely told a nurse from whom she sought treatment, as well as the human resources manager at the company and others, possibly including the police, that Comstock assaulted her.

Judge Ronald E. Quidachay granted the anti-SLAPP motion, finding that the defamation allegations implicated Aber’s rights of free speech and petition in connection with an official proceeding and that Comstock failed to show he was likely to prevail on the merits.

Justice James Richamn, writing for the Court of Appeal, agreed.

Statements to the police about sexual assault, as well as statements to a health care professional who has a mandatory duty to report sexual assault, clearly fall within the official-proceeding prong of the anti-SLAPP statute, the justice said.

Comstock, he noted, conceded on appeal that the filing of a police report would have constituted protected conducted but claimed there was no evidence that a police report was ever made.  But it was Comstock who alleged that Aber defamed him to the police in the first place, Richman pointed out.

”Comstock cannot defeat that allegation by claiming that Aber did not do what he alleges she did,” the justice said, adding in a footnote that there was in fact evidence that while Aber was with the nurse, the nurse called the police and put Aber on the phone with an officer.

Richman went on to say that Aber’s alleged statements to her human resources manager were protected because they were part of the company’s internal procedures for dealing with sexual harassment allegations. The justice also noted that Wolters Kluwer has pled as an affirmative defense that Aber failed to take advantage of those procedures.

The justice acknowledged that Comstock’s “vague” allegation that Aber told “friends” that Comstock had assaulted her might, standing alone, fall outside the anti-SLAPP statute. But because any such statements were merely incidental to the clearly protected statements to the police, the nurse, and the human resources manager, they are protected in this case, Richman said.

He distinguished City of Colton v. Singletary (2012) 206 Cal.App.4th 751, in which a divided panel held that where a plaintiff’s claim involves both protected and unprotected activity, and the defendant shows a likelihood of prevailing with respect to at least part of the lawsuit, “the lawsuit-related allegations may be parsed from the causes of action and stricken, while the allegations related to non-protected activity may remain as part of the complaint.”

Assuming that the majority was correct, Richman said, the holding does not apply in this case because Comstock failed to show that he is likely to defeat any part of Aber’s complaint.

Comstock, Richman elaborated, presented no evidence in opposition to the anti-SLAPP motion that he did not assault Aber, nor any evidence that Aber made a non-privileged statement alleging that he did.

The case is Aber v. Comstock, A134701.


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