Today, the Court of Appeal, First Appellate District, issued an Order Certifying Opinion for Publication in Aber v. Comstock.
Aber v. Comstock involved a claim of sexual assault brought by an employee (Aber) against her employer and two its employees, based on a claim for sexual assault by the employees. One of those employees (Comstock), filed a cross-complaint against Aber, alleging claims for defamation and intentional infliction of emotional distress (IIED). Aber, represented by the California Anti-SLAPP Project, filed an anti-SLAPP motion. The trial court granted the motion and dismissed the cross-complaint. The Court of Appeal affirmed.
In its decision, the Court of Appeal held that Aber’s statements about the assault to the police, a nurse, and the employers’s HR manager were all protected under section 425.16(e)(1) or (e)(2), as statements made in, or in connection with matters under review by, an official proceeding or body.
The Court of Appeal also held that Comstock failed to demonstrate a likelihood of prevailing on the merits of his claims. Analyzing his first cause of action for defamation, the Court held that Comstock had not submitted any admissible evidence that Aber made defamatory statements about him. Because his IIED claim was based on the same allegations as his first cause of action, the Court held that “The complained-of conduct here- reporting sexual assault to the Kaiser nurse and Kluwer’s HR department – is hardly ‘extreme and outrageous.’ Beyond that, Comstock has provided to evidence that he suffered any emotional distress, let alone severe distress.”
The Court of Appeal’s opinion was originally filed as an unpublished decision on 12/18/12, but was certified for publication today, following a Request for Publication letter from the Association of Southern California Defense Counsel (ASCDC). In its letter, ASCDC requested publication of this opinion because it made three important contributions to anti-SLAPP jurisprudence.
1) In regard to Aber’s report of alleged abuse to a treating health care provider, the opinion extended the “mandatory reporter” rule of Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 to a new situation. ASCDC noted, “In Siam, the Court of Appeal held that the defendant’s reports of child abuse to persons who were bound by law to report allegations to government authorities were protected by Code of Civil Procedure 425.16, subdivision (e)(2). In Aber, the same rule is applied in the slightly broader context of a plaintiff’s report of abusive conduct to an emergency health care provider, who was a ‘mandatory reporter.'”
2) Through its opinion, the Court of Appeal extended “official proceeding” protection to plaintiff’s reports to the human resources manager of plaintiff’s and defendant’s common employer. ASCDC stated, “The Court reasoned this would be essential for plaintiff to overcome a defense of failing to take advantage of the employer’s preventative or corrective opportunities.”
3) The Court’s analysis of the “mixed cause of action” issue contained both a cogent summary of the prevailing rule and citations and descriptions of the key cases addressing the issue.
ASDC concluded by noting that the “Aber decision both “[i]nvolves a legal issue of continuing public interest” and “[m]akes a significant contribution to the legal literature.” The Court of Appeal evidently found ASCDC’s letter persuasive, as it issued its order today to publish the opinion. You can read the full opinion here:
http://www.courts.ca.gov/opinions/documents/A134701.PDF