Comstock v. Aber
212 Cal. App. 4th 931
| Cal. Ct. App. | 2012Background
- Aber filed a complaint on Aug 31, 2010 against Wolters Kluwer United States (Kluwer) and two employees, alleging four claims including sexual harassment and sexual battery.
- Comstock served and filed a cross-complaint on June 3, 2011 alleging defamation and intentional infliction of emotional distress based on Aber’s statements.
- The cross-complaint recites a June 5–9, 2010 sequence where Aber allegedly made or published false statements to third parties including a Kaiser nurse and Kluwer HR and others.
- Aber moved to strike the cross-complaint under CCP 425.16 (SLAPP) on July 8, 2011; the trial court granted the motion at Aug 8, 2011 and after rehearing on Dec 6, 2011, striking the cross-complaint with prejudice and awarding fees.
- The appellate court applies the two-step SLAPP framework: step 1 threshold protected activity; step 2 probability of prevailing; the cross-complaint is within 425.16 but Comstock fails to show a likelihood of prevailing on the merits.
- The court analyzes protected communications to police, to a Kaiser nurse (mandated reporter), and to an HR manager as protected activity and also discusses privileges under Civil Code 47(b)-(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cross-complaint is subject to CCP 425.16 (SLAPP). | Aber contends the cross-complaint arises from protected activity. | Comstock argues it falls outside or not sufficiently protected. | Yes; cross-complaint falls within 425.16 (e)(1)-(2). |
| Whether Aber’s communications to police, nurse, and HR are protected under SLAPP. | Aber argues these statements relate to protected official actions or prelitigation defenses. | Comstock maintains not all communications are protected. | Police and nurse communications are protected; HR conversation also protected as prelitigation/preventive defense communications. |
| Whether Comstock showed a probability of prevailing on the defamation and IIED claims. | Comstock asserts the statements were false and malicious. | Aber’s statements were not shown with admissible evidence of falsity or malice. | No; Comstock failed to produce admissible evidence of actual falsity or malice; claims fail on the merits. |
| Whether Civil Code privileges shield Aber from liability. | Aber’s communications were privileged under §47(b)-(c). | Malice could defeat privilege. | Privilege applies; malice not shown, defeating cross-claims. |
| Whether the statements to friends alter the SLAPP analysis. | Allegations about friends are central to the defamation claims. | Protected conduct must not be merely incidental to unprotected conduct. | Cross-claims fall within SLAPP; protected conduct not merely incidental. |
Key Cases Cited
- Siam v. Kizilbash, 130 Cal.App.4th 1563 (Cal. App. 2005) (mandated reporter immunity; official proceedings protection under 425.16(e)(2))
- Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106 (Cal. 1999) (prelitigation statements protected under SLAPP similarly to litigation privilege)
- Hecimovich v. Encinal School P.T.O., 203 Cal.App.4th 450 (Cal. App. 2012) (two-step SLAPP framework and de novo review on appeal)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (minimum merit standard for anti-SLAPP)
- Silberg v. Anderson, 50 Cal.3d 205 (Cal. 1990) (privilege extends to communications to government authorities)
- City of Colton v. Singletary, 206 Cal.App.4th 751 (Cal. App. 2012) (mixed causes of action; parsing protected vs. unprotected activity)
- Lefebvre v. Lefebvre, 199 Cal.App.4th 696 (Cal. App. 2011) (jury statement context; illustrative comparative analysis)
- Olaes v. Nationwide Mutual Ins. Co., 135 Cal.App.4th 1501 (Cal. App. 2006) (distinguishes prelitigation vs. official proceeding scope under SLAPP)